BVA9504041 DOCKET NO. 93-01 671 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to an increased rating for residuals of a perforated duodenal ulcer, status post subtotal gastrectomy, currently evaluated as 30 percent disabling. ATTORNEY FOR THE BOARD Kay F. Mayer, Associate Counsel INTRODUCTION The appellant served on active duty from March 1942 to August 1945. This matter came before the Board of Veterans' Appeals (Board) on appeals from rating decisions of the VA Regional Office (RO) in New York, New York. In September 1993 the Board remanded the instant issue for further development by the RO. In the September 1993 decision of the Board the Board granted the appellant restoration of a 30 percent evaluation for residuals of a perforated duodenal ulcer, status post gastrectomy and vagotomy, then rated as noncompensably disabling. The veteran had been given a 30 percent rating after service pursuant to the provisions of the 1933 rating schedule that were then in effect. The veteran had however, received retirement pay in lieu of VA compensation. The restoration was granted pursuant to the provisions of 38 U.S.C.A. § 110; 38 C.F.R. § 3.951; and, Salgado v. Brown, 4 Vet.App. 316 (1993). The instant issue was then remanded for evidentiary development. The case has now been returned to the Board. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in essence, that his duodenal ulcer disease has increased in severity since he was granted a 30 percent evaluation. He also maintains that he has had gastrointestinal bleeding since 1958 and has been prescribed vitamins and iron for that condition without which he would have more anemia than he does now. He also argues that in July 1992 he had another stricture accompanied by substantial loss of weight and that he is presently at a low weight for his height. He argues that without a nightly dose of medication for prevention of diarrhea he would be in bad shape. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review and consideration of the evidence and material of record in the appellant's claims file, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against an increased rating for residuals of perforated duodenal ulcer disease, status post gastrectomy and vagotomy. FINDINGS OF FACT 1. All relevant evidence necessary for a disposition of the appeal has been obtained by the RO. 2. The appellant's service-connected duodenal ulcer disease, status post subtotal gastrectomy and vagotomy are manifested by subjective complaints of abdominal pain and objective evidence of no symptoms from that disorder that is productive moderately severe duodenal ulcer disease or moderate post gastrectomy syndrome. 3. The service connected ulcer disease is not shown to currently produce anemia or malnutrition. CONCLUSION OF LAW The criteria for an evaluation in excess of 30 percent for residuals of a perforated duodenal ulcer, status post subtotal gastrectomy have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 3.321(b), 4.1, 4.2, 4.7, 4.10, and Part 4, Codes 7305, 7308. (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board finds that the appellant's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), and that he has presented a claim which is plausible. That being so, the record must be examined to determine whether the Department of Veterans Affairs (VA) has any further obligation to assist him in the development of his claim. 38 U.S.C.A. § 5107(a). A review of the record reflects that all relevant facts have been properly developed and that no useful purpose would be served by again remanding the case with instructions to provide additional assistance to the appellant. There are service medical records for the appellant describing his initial peptic ulcer disease beginning in 1945. It is not indicated that there are other service records available that would be pertinent. Moreover, the appellant had chosen for many years to receive retirement income in lieu of compensation income for his service-connected disorder. He has been contacted and offered a chance to provide locations of treatment pursuant to Board remand. There was no response to that request. Thus, there are virtually no medical records of treatment following discharge until after the appellant filed his claim to receive compensation in September 1991. However, the record has been developed in recent years with VA examinations involving the appellant's peptic ulcer disease disorder. Therefore, the Board concludes it has satisfied the duty to assist the appellant in obtaining facts relevant to his claim, pursuant to the provisions of 38 U.S.C.A. § 5107(a). Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity under the VA's Schedule for Rating Disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The history of the appellant's service-connected peptic ulcer disease disorder has been reviewed, particularly as it affects the ordinary conditions of daily life, including employment, as required by the provisions of 38 C.F.R. §§ 4.1, 4.2 and 4.10 and other applicable regulations. Schafrath v. Derwinski, 1 Vet.App. 589 (1991). The entrance physical examination revealed the veteran to be 68 inches tall and to weigh 136 pounds. On examination of March 1943 he weighed 147 pounds. The service medical records indicate the appellant was serving in Belgium during World War II when he developed severe peptic ulcers, manifesting hematemesis, melena and developed an acute perforation of duodenal ulcer. He underwent an exploratory laparotomy, which revealed a large perforated ulcer on the anterior surface of the first part of the duodenum that was surgically treated and closed. In March 1945 the only complaint the appellant had subsequent to surgery was occasional gas after eating but this was unrelated to any particular food and it was noted there were no other bodily complaints and the patient felt well. He was noted to weigh 130 pounds in March. The veteran was given medical retirement from service. At the time of the June 1944 retirement examination, he weighed 144 pounds. An August 1945 rating decision granted the appellant service connection for a perforated duodenal ulcer that was postoperatively symptomatic and assigned a 30 percent evaluation. This rating was pursuant to the provisions of the 1933 rating schedule which were then in effect. Subsequently in August 1945 the appellant was provided notice that he could waive a portion of his retirement pay and receive VA benefits. Such waiver was not forthcoming and VA benefits were not paid. The veteran reopened a claim for compensation benefits in September 1991. Pursuant to that claim, he underwent a VA examination in January 1992. He complained of esophageal strictures, some discomfort in the duodenal area, as well as anemia. The examination revealed the appellant reported a prior medical history of esophageal stricture with multiple dilatations over many years and a 50-year history of duodenal ulcer disease and with status post gastrectomy and vagotomy, but had no swallowing problems. A barium enema in February 1991 reportedly revealed diverticulosis. The abdomen was soft on examination without pain on palpation. The assessment was that the appellant had complicated problems including peptic ulcer disease and esophageal strictures. The diagnosis was history of peptic ulcer disease, status post perforation and subtotal gastrectomy and vagotomy and that the appellant was now asymptomatic. The appellant underwent a VA gastrointestinal examination in February 1993. The appellant reportedly weighed 130 pounds. He reported a history of intestinal obstruction for which he was treated 13 years after his peptic ulcer disease surgery in 1945. He also reported being hospitalized over time for intestinal adhesions. He made complaints of subjective pain in the right side of his body, especially at the right upper quadrant which was gripping and twisting in nature and usually post prandial. He reported no hematemesis but occasional melanotic stools. He also complained of pain that was present all the time. It was noted that recent diagnostic test results indicated that a barium meal suggested stomal ulcer in the posterior aspect of the jejunum. The diagnosis was probable stomal ulceration. Subsequently the appellant underwent a VA gastrointestinal examination in March 1994. It was reported he had a Billroth II operation performed in 1958 and subsequently had upper right quadrant stitches (pain) 4 or 5 times a week lasting an hour or more, and sometimes so severe that he went to a hospital. He had been told he had an esophageal stricture and it was dilated until 1990. He reported subjective complaint of swelling in the upper right quadrant. Examination revealed the appellant seemed to have sincere difficulty with upper gastrointestinal system. The examiner did not feel that an upper gastrointestinal series was indicated due to its trauma for the 86-year-old appellant for evaluation purposes. It was noted his last gastrointestinal series in 1992 was said to show some obstruction and the examiner quoted from the X-ray report some "collection of contrast material in the duodenum which might be an ulcer, duodenum and a small hiatal hernia was refluxed." The appellant's current weight was 125 pounds. He was not anemic, did not vomit, had no hematemesis or melena, there was no indication he had recurrent diarrhea and the diagnoses included status post duodenal ulcer, status post perforation of duodenal ulcer, status post obstruction with gastric resection, Billroth II, status post dilatation for esophageal stricture and presence of an esophageal stricture was suggested. The appellant's service-connected history of duodenal ulcer disease with status post perforation and subtotal gastrectomy and vagotomy is currently rated as 30 percent. As noted, this rating was assigned pursuant to the provisions of the 1933 rating schedule. That rating is protected from reduction. The question presented in this appeal is whether under codes now in effect, there is a basis for granting an increased rating. For reasons set forth in greater detail below, we conclude there is no basis for assigning a higher rating. The Board concludes that the appellant's duodenal ulcer disease is to be rated based on symptoms under Diagnostic Codes 7308 and 7305, for a post gastrectomy syndrome and duodenal ulcer, respectively. Neither of these codes provides for a 30 percent disability rating. Under Diagnostic Code 7308 for a moderate post gastrectomy syndrome is included less frequent episodes of epigastric disorders (than for the 60 percent rating) with characteristic mild circulatory symptoms after meals but with diarrhea and weight loss that calls for a 40 percent evaluation. A severe post gastrectomy syndrome is associated with nausea, sweating, circulatory disturbances after meals, diarrhea, hypoglycemic symptoms and weight loss with malnutrition and anemia that calls for assignment of a 60 percent evaluation. The most recent clinical evaluation revealed the appellant's symptoms included subjective complaints of upper and right quadrant pain 4 or 5 times a week lasting for an hour, that sometimes allegedly required hospitalization. This claim has not been substantiated by medical records. Significantly he was noted not to be anemic, did not vomit, did not manifest hematemesis or melena and there was no evidence of recurrent diarrhea or significant weight loss. His recorded weights during and since service have been between 125-147 pounds. The diagnoses included a past history of duodenal ulcer with perforation and obstruction that required a Billroth II procedure and status post dilatation for esophageal stricture with suggested presence of one currently, but no indication of significant weight loss with the other aforestated symptoms that would call for the next higher evaluation. The Board concludes that the aforestated objective medical evidence does not warrant assignment of a 40 percent evaluation for moderate post gastrectomy syndrome under Code 7308. The veteran could also be assigned a higher rating under Diagnostic Code 7305. A 40 percent rating is for assignment where the ulcer is moderately severe; symptoms less than for the 60 percent rating but with impairment of health manifested by anemia and weight loss; or recurrent incapacitating episodes averaging 10 days or more in duration at least 4 or more times a year. The 60 percent rating is for severe ulcer disease; pain only partially relieved by standard ulcer therapy, periodic vomiting, recurrent hematemesis or melena, with manifestations of anemia and weight loss productive of definitive impairment of health. The recent objective medical evidence simply does not include any objective medical finding of melena, anemia, significant weight loss, vomiting or definite impairment of health as required by the aforestated code. The veteran has complaints of pain, and some evidence of a stomal ulcer, but no findings of moderately severe duodenal ulcer disease as contemplated by the aforementioned Code provisions. He has not been shown to be incapacitated for any period of days. As noted, the weight changes are not such as to suggest health impairment. Therefore, a higher evaluation under the aforestated codes is not for application and the disability picture involving the appellant does not more nearly approximate the criteria for the next higher evaluation, for the aforementioned reasons. 38 C.F.R. § 4.7. Because the evidence does not demonstrate that the appellant's service-connected duodenal ulcer disease disorder presents such an unusual or exceptional disability picture with marked interference with employment, if he were not retired, or frequent periods of hospitalization as to render the regular schedular standards impractical, the Board finds an extraschedular evaluation is not warranted. 38 C.F.R. § 3.321(b)(1). There is no evidence the appellant has recently been frequently hospitalized with a service-connected peptic ulcer disease disorder. The preponderance of the evidence is against the allowance of the claim. Therefore, the benefit of the doubt doctrine is inapplicable. 38 U.S.C.A. § 5107(b). ORDER An increased rating for history of duodenal ulcer disease, status post perforation with subtotal gastrectomy and vagotomy is denied. MICHAEL D. LYON 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.