Citation NR: 9803268 Decision Date: 02/02/98 Archive Date: 02/11/98 DOCKET NO. 94-19 545 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island THE ISSUE Entitlement to an increased rating for post-operative subtotal gastrectomy and vagotomy for duodenal ulcer (duodenal ulcer disease herein), currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Ehrman, Counsel INTRODUCTION The veteran had active duty from February 1943 to December 1945, and from June 1946 to March 1950. This matter comes before the Board of Veterans' Appeals (Board) from a November 1991 rating decision of the RO, which denied a claim for an increased rating, in excess of a 20 percent evaluation, for service-connected duodenal ulcer disease. In July 1996 and June 1997 the Board remanded the appeal for additional necessary development, to include the adjudication of the inextricably intertwined issues of entitlement to service connection for hiatal hernia, gastroesophageal reflux disease and slow venous outflow of the right leg, to include secondary service connection under the United States Court of Veterans' Appeals (the Court) decision in Allen v. Brown, 7 Vet.App. 439 (1995). The requested development was substantially completed, and the RO denied the claims for service connection, both on a direct and secondary basis, by RO decision dated in January 1997. As no appeal was completed by the appellant, the Board is without jurisdiction and no further action is appropriate with regard to the service-connection claims. The Board also notes that additional evidence was received, either at the RO or the Board, after the most recent supplemental statement of the case, dated in August 1997. This evidence, however, included two duplicate records, as well as an April 1997 private report of colonoscopy with polypectomy, which regards non-service-connected disability (colon polyps) not presently on appeal. This matter is referred to the RO for development deemed appropriate. CONTENTIONS OF APPELLANT ON APPEAL The appellant has made no specific contentions on appeal. However, his May 1991 claim for increase includes the statement that his service-connected “stomach” disorder recently requires considerable time for treatment, warranting an “upgrade” in his disability compensation. 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. 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 preponderance of the evidence is against the veteran's claim for an increased rating for post- operative subtotal gastrectomy and vagotomy for duodenal ulcer. FINDINGS OF FACT 1. All relevant evidence reasonably necessary for an equitable evaluation of the claim for increase on appeal has been obtained by VA. 2. The veteran's service-connected post-operative subtotal gastrectomy and vagotomy for duodenal ulcer is primarily manifested by subjective complaints of much heartburn, nausea on fast or excessive eating (no nausea with smaller portions), increased symptoms with spicy, greasy or acidic foods, mid-abdominal to sub-xiphoid burning in the stomach, with some intermittent relief with medication, with objective evidence on examination of mild duodenal bulb duodenitis, tertiary contraction of Billroth I anastomosis; symptoms which result in disability which is no more than moderate. 3. The veteran’s post-operative subtotal gastrectomy and vagotomy for duodenal ulcer have not been shown to result in dumping type symptoms, vomiting, anemia, weight loss or recurrent hematemesis. CONCLUSION OF LAW The criteria for an increased evaluation for post-operative subtotal gastrectomy and vagotomy for duodenal ulcer have not been met. 38 U.S.C.A. § 1155 (West 1991 & Supp. 1997); 38 C.F.R. § 4.114, Diagnostic Code 7305 (1997). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background Service connection for psychogenic gastro-intestinal reaction, duodenal ulcer, was established by RO rating decision dated in January 1951. A July 1955 RO rating decision established service connection and a separate disability rating for conversion reaction, moderate; the RO rating decision of April 1958 assigned a 20 percent disability evaluation for service-connected duodenal ulcer disability. That rating has remained in effect since that time for post-operative subtotal gastrectomy and vagotomy for duodenal ulcer. Private and VA treatment records, dated from 1990 to 1996, show treatment for several abdominal and lower extremity disorders not pertinent to the claim on appeal. In brief, pertinent part, the veteran is shown to have a history of ulcer disease, status post subtotal gastrectomy with vagotomy in 1965, a history of cholecystectomy in 1966, as well as gastroesophageal reflux, esophageal spasm, slow venous outflow of the right leg, possibly secondary to abdominal pressure, and evidence suggestive of venous varicosities and vascular insufficiencies. (See July 1991 and September 1992 private treatment records, and VA examination report of October 1991). On VA out-patient examination in March 1990 an examiner suspected reflux esophagitis, with a question as to secondary hiatal hernia, and a question of bile gastritis. The veteran reported dysphagia for the past 6 to 7 years, washing “fluids” down with liquids, and a history of hiatal hernia, with epigastric pain with fast eating, a symptom which was relieved immediately with Maalox. An October 1996 upper gastrointestinal endoscopy at Kent County Memorial Hospital revealed status post Billroth I and mild duodenal bulb duodenitis. No other duodenal pathology was observed. On VA digestive and intestinal examination in December 1996, a long history of upper gastrointestinal complaints, intermittently labeled as psychogenic, was noted. Currently, the veteran complained of much heartburn; occasional dysphagia; nausea if he eats too much, no nausea with smaller portions, and increased symptoms with spicy, greasy or acidic foods; mid-abdominal to sub-xiphoid burning in the stomach; intermittent response to Zantac and Carafate, with some relief with Maalox. The veteran had no complete discrete complaints referable to the lower gastrointestinal (GI) tract. Objective findings were remarkable for a benign abdominal examination. An upper GI series in June 1997 showed tertiary contraction of Billroth I anastomosis (an October 1991 series showed distal esophageal stricture, a small hiatal hernia and Billroth anastomosis) and an October 1996 esophogastroduodenoscopy showed minimal duodenitis, bile reflux gastritis, Billroth I anastomosis and a question of narrowing distal esophagus. Specific evaluation information included notation of a current weight of 203 pounds, with maximum weight in the past year 230 pounds. It was noted that the veteran was deliberately trying to lose weight secondary to his borderline diabetes mellitus. There was no anemia or malnutrition. He would experience nausea and abdominal disturbances associated with eating too much, none with moderate intake. No diarrhea or constipation was noted, and no significant bowel problems. The pertinent diagnoses were status post Billroth I hemigastrectomy and vagotomy, history of peptic ulcer disease, gastroesophageal reflux disease with hiatal hernia, diffuse esophageal spasm, possible functional/motor disorder of the upper GI tract, and bile reflux gastritis/ mild duodenitis. The VA examiner opined that the veteran’s complex constellation of symptoms include some not always attributable to objective findings, suggestive of a functional or motor disorder, and some which are attributable to surgery (e.g., nausea with eating too much). The veteran was noted to have no dumping type symptoms, and there was no reason to suspect that his gastroesophageal reflux or hiatal hernia are related to his service-connected duodenal ulcer. It was also opined that his ulcer surgery did not seem to have made any impact on his overall constellation of symptoms, and that there does not appear to have been any appreciable change in his symptoms or their severity over the past 40 years. The examiner concluded that the question of slow venous outflow of the right lower extremity and any relation to history of duodenal ulcer or ulcer surgery had no basis in medical physiology or anatomy. Additional private treatment records were received after December 1996 and prior to August 1997, but regard disorders not pertinent to the appeal. In January 1997, the RO denied secondary service connection for hiatal hernia; gastroesophageal reflux disorder with chest pain, bile reflux gastritis, mild duodenitis, possible functional/motor disorder and diffuse esophageal spasm; and slow venous outflow of the right leg. II. Analysis--Increased Rating for Duodenal Ulcer Disease The Board finds that the veteran’s claim for increase is well grounded and that the statutory duty to assist has been satisfied. 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1997); Murphy v. Derwinski, 1 Vet.App. 78 (1991). Where, as in this case, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet.App. 55, 58 (1994). Under Diagnostic Code 7305 for a duodenal ulcer, a 20 percent evaluation contemplates moderate symptomatology with recurring episodes of severe symptoms 2 or 3 times a year averaging 10 days in duration or with continuous moderate manifestations. A 40 percent rating is assigned for moderately severe impairment; symptoms of vomiting, recurrent hematemesis, or melena with impairment of health manifested by anemia and weight loss productive of definite impairment of health. At the most recent VA rating examination, conducted in December 1996, it was noted that the veteran’s primary complaints were of symptoms not specifically associated with service-connected duodenal ulcer disability, including pain and heartburn, occasional dysphagia, and nausea, but only when he eats too much. The veteran’s primary disorder appears to be reflux disease and diffuse esophageal spasm, and, more significantly, the examiner was of the opinion that there was no reason to suspect that the veteran’s gastroesophageal reflux disease or hiatal hernia are related to service-connected disability. Additionally, the examiner found that service-connected duodenal ulcer disability had not appreciably increased in severity over the past 40 years. A functional element was also noted. The examiner found no anemia or weight loss, no recurrent incapacitating episodes, and no impairment of health--there is no persuasive evidence that service-connected duodenal ulcer disease in this case produces a definite impairment of health, e.g. there is no evidence of weight loss attributable to the service-connected disability or any other health problem. Although the veteran suffers intermittent episodes of abdominal pain, nausea and occasional dysphagia, this is controlled to some degree by Maalox, Zantac and Carafate medications. The specific symptomatology cited in Code 7305 as criteria for a 40 percent rating are absent. In making its determinations, the Board has considered the veteran’s contentions which are considered credible insofar as the veteran described his current symptoms and beliefs that his service-connected ulcer disorder is more disabling that currently rated. However, the competent evidence in this case does not provide a basis for favorable action on the veteran’s claim. Accordingly, the Board finds that the veteran's current disability rating contemplates compensation for his present level of symptomatology and resulting impairment. The Board therefore finds that a preponderance of the evidence is against the claim for an increased rating for duodenal ulcer disease and that the benefit-of-the-doubt rule does not apply. 38 U.S.C.A. § 5107(b). ORDER An increased rating for duodenal ulcer disease, currently evaluated as 20 percent disabling, is denied. BARBARA B. COPELAND Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1997), 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. - 2 -