Citation Nr: 0307607 Decision Date: 04/22/03 Archive Date: 04/30/03 DOCKET NO. 01-08 405 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan THE ISSUE Entitlement to a disability rating in excess of 20 percent for residuals of a gastrectomy and gastrojejunostomy for duodenal ulcer. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Robert E. O'Brien, Counsel INTRODUCTION The veteran had active service from April 1944 to October 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2001 rating decision of the VARO in Detroit, Michigan, which granted service connection for residuals of a gastrectomy and gastrojejunostomy for duodenal ulcer and assigned a 20 percent disability rating, effective September 4, 1998. FINDINGS OF FACT 1. The veteran has been notified of the evidence necessary to substantiate his claim, and all relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. Manifestations of the veteran's gastrointestinal disorder include nausea, periods of vomiting, weight loss, abdominal bloating, and heartburn. The residuals of his multiple gastric surgeries result in severe impairment. CONCLUSION OF LAW The schedular criteria for a disability evaluation of 60 percent for the veteran's residuals of a gastrectomy and gastrojejunostomy for duodenal ulcer have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West Supp. 2002); 38 C.F.R. §§ 4.1-4.14, 4.110-4.114, Diagnostic Codes 7305-7308 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION Although the Veterans Claims Assistance Act of 2000 (VCAA), Public Law No. 106-475, 114 Stat. 2096, became effective during the pendency of this appeal, the Board finds it unnecessary to address its applicability to this appeal in view of the disposition reached herein. The Board notes, however, that the veteran was asked to provide additional records pertaining to his gastrointestinal disorder and he has done so. Additionally, in early 2003 he was accorded a special gastroenterology examination by VA. Disability evaluations are determined by comparing current symptomatology with the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. When a question arises as to which of two disability ratings apply under a particular diagnostic code, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After a careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. Historically, a July 2001 rating decision granted service connection for a gastrointestinal disorder, classified for rating purposes as status post partial gastrectomy and gastrojejunostomy for duodenal ulcer, and assigned a 20 percent disability rating, effective September 4, 1998, under Diagnostic Codes 7305-7308. Under Code 7308, a 20 percent evaluation is assigned for a mild disability with infrequent episodes of epigastric distress with characteristic mild circulatory symptoms or continuous mild manifestations. The next higher evaluation of 40 percent is assigned for a moderate disability with less frequent episodes of epigastric distress with characteristic mild circulatory symptoms after meals, but with diarrhea and weight loss. The maximum rating of 60 percent is assigned when the disability is severe, associated with nausea, sweating, circulatory disturbance after meals, diarrhea, hypoglycemic symptoms, and weight loss with malnutrition and anemia. 38 C.F.R. § 4.114, Code 7308. Another potentially applicable diagnostic code is Diagnostic Code 7305 for duodenal ulcer disease. Under that code, a 20 percent evaluation is assigned for a moderate disability with recurring episodes of severe symptoms 2 or 3 times a year, averaging 10 days in duration or with continuous moderate manifestations. The next higher rating of 40 percent is for assignment when there is a moderately severe duodenal ulcer which is less than severe, but with impairment of health manifested by anemia and weight loss or recurrent incapacitating episodes averaging 10 days or more in duration at least four or more times a year. The maximum rating of 60 percent is for assignment when the ulcer disease is severe, with pain only partially relieved by standard ulcer therapy, pruritic vomiting, recurrent hematemesis or melena, with manifestations of anemia and weight loss productive of definite impairment of health. 38 C.F.R. § 4.114, Code 7305. Evidence for consideration in connection with the claim consists of private medical records and reports of VA examinations. The records include the report of a VA gastrointestinal examination accorded the veteran in July 2001. The veteran stated that he currently was having on and off problems with abdominal pain and vomiting. He stated that his discomfort was usually relieved with antacids and he was careful to watch his diet. He was taking Pepcid AC twice daily, and Amphojel. On examination it was noted the veteran was 5 feet 7 inches tall and weighed 157 pounds. The abdomen was soft and nontender, without masses or organomegaly. An upper gastrointestinal series reportedly showed no evidence of ulceration. Notation was made of a small hiatal hernia with reflux. The veteran's white blood cell count was elevated. Hemoglobin and hematocrit were listed as 13.9 and 42.4 respectively. The assessments were: Status post partial gastrectomy and gastrojejunostomy for duodenal ulcer, remote; hiatal hernia with reflux. In September 2001, John Mullally, M.D., stated the veteran had been under his care for peptic ulcer disease. The physician indicated the veteran had severe symptoms that included nausea, sweating, circulatory disturbance after meals, diarrhea, hypoglycemic symptoms, and weight loss with malnutrition and anemia. Treatment records from Dr. Mullally were subsequently associated with the claims folder. They reflect the veteran was seen on periodic occasions up to early 2003 for various complaints. At the time of one such visit in December 2002, notation was made that the veteran had gastroesophageal reflux disease which was relieved by Prevacid. Of record is a report of a February 2003 VA gastroenterology unit visit. The veteran's claims folder, his hospital chart, and the reports from Dr. Mullally were reviewed. It was noted the veteran had had several surgical procedures, including pyloroplasty and vagotomy. In 1976 he had partial gastrectomy. In 1985 he had gastric outlet obstruction and had revision of a gastrojejunostomy. Since that time he had reportedly had recurrent upper abdominal pain with nausea and intermittent vomiting. Additionally, he had retrosternal heartburn. The symptoms were noted to be primarily at night and to have become more frequent over the past few years. An upper gastrointestinal barium study done in July 2001 showed a sliding hiatal hernia with reflux and ulceration in the distal esophagus. Esophagogastro- duodenoscopic examination in April 2001 reportedly showed status post partial gastrectomy, with poor emptying of the gastric remnant with retained food and secretions. The distal esophagus reportedly showed short lesions consistent with esophagitis. It was stated that for the past few months the veteran had been having severe gastroesophageal reflux disease symptoms with nausea every other night and vomiting 5 to 6 times a month. Also, he had lost some weight. Currently, his weight was 158 pounds. Further, he complained of abdominal bloating and 2 to 4 loose bowel movements in the morning only. He was taking 30 milligrams of Prevacid twice daily with partial relief of his symptoms. He also stated that antacids also helped. Current examination findings included a soft abdomen, a tender epigastrium, and scars. Bowel sounds were normal and no mass was palpable. The examiner stated the veteran had a history of peptic ulcer disease and was status post multiple gastric surgeries. The examiner opined that the veteran currently had severe gastroesophageal reflux disease symptoms which were likely due to biliary reflux related to the gastric surgeries he had undergone and impaired gastric emptying which might be related to the vagotomy. From a review of the pertinent evidence of record, the Board finds that the veteran's gastrointestinal disability picture is most accurately described as severely incapacitating. This equates to a 60 percent rating under the provisions of Diagnostic Code 7308, particularly with resolution of all reasonable doubt in the veteran's favor. Both the veteran's principal treating physician, Dr. Mullally, and the VA physician who conducted the February 2003 gastroenterology examination, have described the veteran's service-connected symptomatology as severe in degree. Notation has been made of the number of pertinent surgeries the veteran has undergone over the years and of his continuing problems, to include nausea, reports of vomiting, abdominal bloating, and loose bowel movements. At the time of the most recent examination it was indicated that medication the veteran was taking for his symptomatology was providing him with only partial relief of his symptoms. The veteran's private physician and the VA physician also referred to weight loss as well. The undersigned therefore agrees with the description by both the veteran's principal treating physician and the VA physician that the disability picture is best described as severe in degree. Therefore, a disability rating of 60 percent for the veteran's gastrointestinal disease is in order. ORDER A disability rating of 60 percent for the veteran's residuals of partial gastrectomy and gastrojejunostomy for duodenal ulcer is granted, subject to the laws and regulations governing the payment of monetary awards. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.