BVA9500036 DOCKET NO. 93-27 159 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to restoration of a 60 percent disability evaluation for a hiatal hernia with postgastrectomy syndrome. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. D. Regan, Associate Counsel INTRODUCTION The veteran had active service from January 1951 to February 1972. This matter came before the Board of Veterans' Appeals (hereinafter "the Board") on appeal from a July 1992 rating decision of the Cleveland, Ohio Regional Office (hereinafter "the RO") which reduced the disability evaluation for the veteran's service-connected hiatal hernia with postgastrectomy syndrome from 60 percent to 40 percent. In January 1994, the Board remanded this appeal by letter to the RO as the veteran requested a hearing before the Board. In September 1994, the veteran canceled his request for a hearing. The veteran has been represented throughout this appeal by the American Legion. CONTENTIONS OF APPELLANT ON APPEAL The veteran asserts on appeal that the RO erred in reducing the disability evaluation for his service-connected hiatal hernia with postgastrectomy syndrome from 60 percent to 40 percent. The veteran contends, essentially, that his symptomatology indicates that a 60 percent evaluation is warranted for his gastrointestinal disorder. 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 the record supports the restoration of a 60 percent disability evaluation for the veteran's service-connected hiatal hernia with postgastrectomy syndrome. 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 gastrointestinal disorder is productive of severe postgastrectomy syndrome. CONCLUSION OF LAW The schedular criteria for a restoration of a 60 percent disability evaluation for hiatal hernia with postgastrectomy syndrome have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 3.344 and Part 4, including 4,3, 4.7 and Diagnostic Codes 7308, 7346 (1993). 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 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. Our 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. Historical Review The veteran's service medical records indicate that he underwent a transabdominal repair of a hiatus hernia with a vagotomy, pyloroplasty and gastrostomy in July 1966. A December 1971 hospital narrative summary noted that the veteran had a past history which included a vagotomy and pyloroplasty in 1966. The final diagnoses included dumping syndrome and reactive hypoglycemia secondary to corrective surgery for hiatal hernia (vagotomy and pyloroplasty, 1966) and hepatosplenomegaly of undetermined origin. A January 1972 physical evaluation board report noted diagnoses which included status post pyloroplasty, repair of hiatal hernia and vagotomy (1966), with dumping syndrome and reactive hypoglycemia, requiring frequent feedings, special diet and with weight loss since March 1971 associated with hepatosplenomegaly of undetermined origin. In September 1972, service connection was granted for post-operative residuals of hiatal hernia with hepatosplenomegaly. A 40 percent evaluation was assigned with an effective date of February 5, 1972. Treatment records from the medical center at Wright-Patterson Air Force Base in Ohio, dated from September 1985 to March 1989, reflect that the veteran was treated for his gastrointestinal disorder. A September 1985 treatment entry indicated that the veteran's weight was 193 pounds. It was noted that the veteran denied weight loss, but complained of chronic mid-epigastric and abdominal pain which was somewhat exacerbated by eating carbohydrates. The veteran's stool was negative for occult blood. The veteran's abdomen was soft and nondistended with +/- tenderness to direct palpation in the mid epigastrium. The assessment included diarrhea likely secondary to dumping syndrome from vagotomy/pyloroplasty with no evidence of malabsorption. A March 1989 treatment entry noted that the veteran's weight was 180 pounds. He complained of severe diarrhea, epigastric pain and abdominal pain. He related that he especially would have severe pain, nausea and sweating on having a bowel movement. The veteran also related that he had muscle cramps. The assessment included post-vagotomy syndrome with abdominal pain and diarrhea. In an April 1989 statement on appeal, the veteran stated that his physical problems were beginning to cause more and more discomfort and lifestyle disruptions. He reported that he continued to experience gastrointestinal problems and that his gallbladder was removed in the previous two years to try to reduce the problem episodes. The veteran related that he could not eat without knowing that toilet facilities were available. He reported that after meals he would become very weak, shaky, irritated, nauseous and mentally confused. The veteran also related that his disorder had caused him occupational difficulty as well. A May 1989 treatment entry from the medical center at the Wright- Patterson Air Force Base in Ohio noted that the veteran symptoms were mainly "crampy", pain and diarrhea numerous times per day. His weight was 180 pounds. It was noted that the "crampy" symptoms had improved fairly well on medication. The assessment was chronic diarrhea with gastritis with possible bile reflux. The veteran underwent a VA examination in July 1989. He reported that he had diarrhea daily associated with severe pain and frequent nausea. He indicated that he had episodes of dizziness, weakness, trembling and sweating which would occur frequently and were associated with eating or exercise. He also stated that he had episodes of blurred vision with seeing blue, red and green images. The examiner noted that the veteran was status post- vagotomy, pyloroplasty and hiatal repair in 1966. It was noted that the veteran complained of daily diarrhea 3 to 10 times per day, especially after meals. The veteran would occasionally have bright red blood in his stool. The examiner noted that the veteran's weight would fluctuate. The examiner indicated that the veteran had a healed midline upper scar on the abdomen with a right subcostal scar and bilateral inguinal scars status post hernias. There were no masses, tenderness or distention. The diagnoses included hiatal hernia with peptic esophagitis. An August 1989 upper gastrointestinal series noted that numerous surgical clips were noticed at the GE junction and some in the right upper quadrant with surgical sutures in the upper mid abdomen. There was a small sliding hiatus hernia with Grade II GE reflux. In October 1989, the veteran's disability evaluation was increased to 60 percent for hiatal hernia with post-operative gastrectomy syndrome with an effective date of April 24, 1989. The veteran underwent a VA gastrointestinal examination in March 1992. As to history, it was noted that the veteran was diagnosed with a hiatal hernia in 1965. He underwent a partial gastrectomy with pyloroplasty and vagotomy for a duodenal ulcer in 1966 and had been on medications since that time. It was noted that the veteran's symptoms were progressively getting worse. The veteran complained of diarrhea 4 to 5 days in a week with watery frequency 5 to 6 times per day. The veteran had vomiting 2 to 3 times per week which was usually clear, but occasionally dark. The veteran also reported nausea 3 to 4 times per week with upper abdominal pain and burning almost every night lasting for 2 to 3 hours. The veteran indicated that his symptoms were worse and more intense than in the previous year. The examiner reported that the veteran was well developed and nourished and in no acute distress. The veteran had a 10 and 1/2 inch paramedian scar extending from the xiphisternum to below the umbilicus which was nontender. An oblique cholecystectomy scar was also present. The veteran had mild tenderness in the epigastrium. There was no hepatosplenomegaly or free fluid. The rectal exam was within normal limits with the stool negative for occult blood. It was noted that the veteran's present weight was 175 pounds with a maximum weight of 197 pounds in the past year. There was no melena or hematemesis. The diagnoses included hiatus hernia, small sliding, post-gastrectomy syndrome, Grade II gastro-esophageal reflux and microcytic mild anemia secondary to gastrectomy. A March 1992 upper gastrointestinal endoscopy report noted a final diagnosis of possible Barrett's esophagus. In April 1992, the RO proposed reducing the veteran's disability evaluation for hiatal hernia with post-operative gastrectomy syndrome from 60 percent to 40 percent. In a May 1992 statement on appeal, the veteran reported that the VA examination reports did not indicate that he had a hypoglycemic condition. He related that he would bring reports documenting his hypoglycemic condition to his requested personal hearing. The veteran reported that he had been informed by physicians that hypoglycemia was a permanent condition which he would have to cope with. The veteran reported that his condition had slowly deteriorated since 1966 with the period between 1989 and 1992 as no exception. In July 1992, the RO reduced the veteran's disability evaluation for his hiatal hernia with post- operative gastrectomy syndrome from 60 percent to 40 percent effective October 1, 1992. II. Restoration of a 60 Percent Disability 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 moderate postgastrectomy syndrome with episodes of epigastric disorders with characteristic mild circulatory symptoms after meals, but with 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 30 percent evaluation is warranted for hiatal hernia with persistently recurrent epigastric distress with dysphagia, pyrosis and regurgitation accompanied by substernal or arm or shoulder pain, all of which is productive of a considerable impairment of health. A 60 percent evaluation requires symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia or other symptoms combinations productive of severe impairment of health. 38 C.F.R. Part 4, Diagnostic Code 7346 (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). Ratings under Diagnostic Codes 7301 to 7329, inclusive, 7331, 7342 [and] 7345 [to 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, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114 (1993). Title 38 of the Code of Federal regulations (1993) provides in pertinent part 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. 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 general examination and the entire case history. 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. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Ratings on account of diseases subject to temporary or episodic improvement, e.g., manic depressive or other psychotic reaction, epilepsy, psychoneurotic reaction, arteriosclerotic heart disease, bronchial, asthma, gastric or duodenal ulcer, many skin diseases, etc., 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. . . . Moreover, though material improvement in the physical or mental condition is clearly reflected the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a) (1993). The Board further observes that the provisions of 38 C.F.R. § 3.344(c) (1993) limit the application of 38 C.F.R. § 3.344(a) (1993). That regulation provides, in pertinent part, that: The provisions of paragraphs (a) and (b) of this section apply to ratings which have continued for long periods at the same level (5 years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvements, physical or mental, in these disabilities will warrant reduction in rating. 38 C.F.R. § 3.344(c) (1993). As noted above, in September 1972, service connection was granted for post-operative residuals of a hiatal hernia with hepatosplenomegaly and a 40 percent disability evaluation was assigned with an effective date of February 5, 1972. In October 1989, the veteran's disability evaluation was increased to 60 percent for hiatal hernia with post-operative gastrectomy syndrome with an effective date of April 24, 1989. The veteran's 60 percent disability evaluation was reduced to 40 percent pursuant to a July 1992 rating decision. The reduction was effectuated on October 1, 1992. The veteran's 60 percent disability evaluation had not been in effect for five years or more. Given this fact, we find that 38 C.F.R. § 3.344(a) (1993) is not applicable to the instant appeal. In August 1992, the veteran submitted additional treatment records from the medical center at Wright-Patterson Air Force Base as well as a statement from a private physician. A May 1992 treatment entry indicated that the veteran was seen status post hiatal hernia repair with pyloroplasty, dumping syndrome and reactive hypoglycemia (1966). The assessment included reactive hypoglycemia, dumping syndrome and hiatal hernia as well as Barrett's syndrome and diverticulosis by history. A May 1992 statement from Michael W. Gorsky, M.D., reported that the veteran had suffered from dumping syndrome consisting of sweating, agitation, lightheadedness and near syncope after exercise and after meals. It was also noted that the veteran had a great deal of diarrhea. The veteran also reported symptoms of seeing a halo around lights and rare balance problems. Dr. Gorsky indicated that approximately three times in the last two years the veteran would become weak with blurred vision and would become nearly syncopal. Also, Dr. Gorsky stated that the veteran had two glucose tests, one in 1971 or 1972 and a second one in 1980. On the first test, the glucose level went down to 44 mg after three hours and at four hours was 56 mg. In 1980, at three hours the glucose went down to 41. It was noted that in March 1992 the veteran was found to have Barrett's esophagus with a return of a small hiatal hernia. Dr. Gorsky reported that the veteran indicated that his symptoms were no different now than they had ever been and that in some ways they were worse. It was noted that the veteran would have chronic right lower quadrant pain which was described as a burning or stinging type sensation. Dr. Gorsky also noted that the veteran had diverticulosis and that his weight was 173 pounds. The veteran's abdomen was notable for cholecystectomy and midline laparotomy scars with no hepatosplenomegaly or masses. There were normal bowel sounds with mild lower quadrant tenderness. An attached May 1992 glucose tolerance test indicated fasting glucose at 99 with glucose at three hours of 56. At the August 1992 hearing on appeal, the veteran testified that he experienced diarrhea 3 to 4 times a day and that sometimes he would experience it over ten times. He also reported that he would have a 2 to 3 hour episodes of diarrhea. He indicated that his stools were always watery and that he had never noticed any blood. The veteran stated that he experienced frequent nausea and that he almost always experienced nausea with meals. The veteran also indicated that he would have diarrhea accompanied with vomiting and that he would frequently get cramps. He stated that his vomit was generally clear, coffee colored and liquid with some food particles. The veteran also reported that he had pain and discomfort with the diarrhea. He indicated that he had what had been described to him as a hypoglycemic reaction with sweating. He also reported that his vision would get blurred. The veteran further testified that his weight would always fluctuate from as much as 200 pounds to as low as 150 pounds. The veteran indicated that he had been diagnosed as moderately anemic. The veteran testified that his symptoms had progressively worsened. He also indicated that he would have hypoglycemia with exercise. The veteran reported that his present weight was approximately 170 pounds. An April 1993 statement from Michael W. Gorsky, M.D., reported that he obtained a glucose tolerance test for the veteran in May 1992 and that the veteran did become relatively hypoglycemic three hours after the ingestion of glucose with a glucose level of 56. Dr. Gorsky stated that the veteran's symptoms had not improved. It was noted that three times per week the veteran would have severe symptoms involving sweating, lightheadedness, cramping, abdominal pain and diarrhea. Dr. Gorsky indicated that the veteran occasionally would have profound hypoglycemic symptoms. An April 1993 unidentified listing of colonoscopy instructions noted that the veteran's findings for the procedure were severe diverticulosis and colonic ulcer by biopsy. In his June 1993 substantive appeal, the veteran reported that a weight of 160 pounds has never been his normal weight. He indicated that he weighed approximately 175 pounds when he entered service and that his weight fluctuated from January 1955 to January 1965 from 180 to 200 pounds. He indicated that after the 1966 surgery his weight had been very erratic with extreme loss of weight and vitality during periods of severe episodes of dumping, hypoglycemic reactions and other gastrointestinal disturbances. The veteran reported that his weight would fluctuate 30 or more pounds in short periods of time. The veteran further stated that his condition had not improved since 1989 and that he presently had more frequent episodes of gastrointestinal problems. He also reported that he had severe diverticulosis and a colonic ulcer. The Board has made a careful longitudinal review of the record. It is observed that the July 1989 VA examination report indicated that the veteran reported diarrhea daily with severe pain, frequent nausea, episodes of dizziness, weakness, trembling and sweating as well as episodes of blurred vision. The examiner noted that the veteran's weight would fluctuate. The diagnoses included hiatal hernia with peptic esophagitis. The March 1992 VA gastrointestinal examination report noted that the veteran complained of diarrhea 4 to 5 times per week with watery frequency 5 to 6 times per day. The veteran vomited 2 to 3 times per week and had nausea 3 to 4 times per week with abdominal pain almost every night. The examiner noted that the veteran's present weight was 175 pounds with a maximum weight of 197 pounds in the past year. The examiner diagnosed hiatus hernia, small sliding, postgastrectomy syndrome, Grade II gastro-esophageal reflux and microcytic mild anemia secondary to gastrectomy. The Board observes that a May 1992 treatment entry, received after the July 1992 rating decision reducing the veteran's disability evaluation, noted an assessment which included reactive hypoglycemia, dumping syndrome, hiatal hernia and Barrett's syndrome and diverticulosis by history. Also, a May 1992 statement from Dr. Gorsky reported that the veteran suffered from dumping syndrome with sweating, agitation, lightheadedness and near syncope after meals. An attached May 1992 glucose tolerance test indicated a glucose reading of 56 after three hours. An April 1993 statement from Dr. Gorsky reported that the veteran would occasionally have profound hypoglycemic symptoms and that three times per week the veteran would have sweating, lightheadedness, cramping abdominal pain and diarrhea. Additionally, in statements and testimony on appeal the veteran has indicated that his symptomatology has worsened. The Board observes that the clinical evidence indicates that the veteran has diarrhea, nausea, weight loss, sweating, anemia and hypoglycemic symptoms. In consideration of the provisions of 38 C.F.R. § 4.7 (1993), the Board finds that the clinical evidence of record both prior to and subsequent to the July 1992 rating decision indicates symptomatology productive of severe postgastrectomy syndrome. 38 C.F.R. Part 4 Diagnostic Code 7308 (1993). Accordingly, restoration of a 60 percent evaluation for the veteran's hiatal hernia with postgastrectomy syndrome is warranted. We find no basis for a higher rating however, beyond 60 percent on a schedular basis, as the 60 percent is the maximum schedular rating. Nor do we find the disability is so unusual as to warrant a higher rating extraschedularly per 38 C.F.R. § 3.321 (1993). ORDER A 60 percent evaluation for hiatal hernia with post-operative gastrectomy syndrome is restored subject to the laws and regulations governing the grant 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.