93 Decision Citation: BVA 93-04396 Y93 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 91-37 960 ) DATE ) ) ) THE ISSUES Entitlement to an increased evaluation for residuals of vagotomy for peptic ulcer disease, currently rated as 30 percent disabling. Entitlement to restoration of a 10 percent evaluation for bilateral hearing loss. REPRESENTATION Appellant represented by: American Ex-Prisoners of War, Inc. WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Richard V. Chamberlain, Counsel INTRODUCTION The veteran had active service from March 1940 to March 1970. In a rating decision in March 1988, the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, reduced the evaluation for chronic peptic ulcer from 40 percent to 30 percent. The veteran submitted a notice of disagreement in June 1988, and a statement of the case was issued in July 1988. The veteran did not submit a timely substantive appeal therefrom, and the rating decision of March 1988 became final. 38 U.S.C.A. § 7105 (West 1991). In a rating decision in April 1990, the RO denied a rating in excess of 30 percent for residuals of vagotomy for peptic ulcer disease and reduced the evaluation for bilateral hearing loss from 10 percent to noncompensable, effective from July 1, 1990. The veteran disagreed with the determinations and testified at a personal hearing at the RO in October 1990. The veteran's testimony is considered a notice of disagreement. The decision of the hearing officer in January 1991 continued the denial of the claims. The supplemental statement of the case was issued in February 1991. The veteran submitted a substantive appeal in March 1991. The case was received and docketed at the Board of Veterans Appeals (Board) in July 1991. The veteran is represented by the American Ex-Prisoners of War, Inc., and that service organization submitted written argument to the Board in June 1992. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his service-connected gastrointestinal disorder is more severe than currently rated and requests a higher rating for this disorder. It is asserted that this disorder should be evaluated under Diagnostic Code 7308 in order to better reflect the veteran's disability picture. Additionally, the veteran requests restoration of the 10 percent rating for bilateral hearing loss asserting that the evaluation for this disorder should not have been reduced based on the provisions of VA Adjudication Procedure Manual, M21-1 paragraph 50.13b and the holding in Fugere v. Derwinski, 1 Vet.App. 103 (1990) which was confirmed recently by the United States Court of Appeals for the Federal Circuit, at 972 F.2d 331 (1992). DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104, following review and consideration of all evidence and material of record in the veteran's claims file, and for the following reasons and bases, it is the decision of the Board that the evidence supports assignment of a 40 percent rating for residuals of vagotomy for peptic ulcer disease and restoration of the 10 percent rating for bilateral hearing loss. FINDINGS OF FACT 1. The veteran's service-connected gastrointestinal disorder is manifested primarily by an inability to gain weight, diarrhea 2 or 3 times per week, occasional dumping syndrome and moderate epigastric distress. 2. The rating for the veteran's bilateral hearing loss was improperly reduced based on a change in rating criteria. CONCLUSIONS OF LAW 1. The criteria for a 40 percent rating for residuals of vagotomy for peptic ulcer disease are met. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4, Code 7308. 2. The criteria for restoration of the 10 percent rating for bilateral hearing loss are met. 38 C.F.R. § 4.85, et seq., Diagnostic Code 6295, effective prior to Dec. 18, 1987, Diagnostic Code 6100, effective from Dec. 18, 1987, and M21-1, par. 50.13b. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The record shows that the veteran's claims for a higher rating for residuals of vagotomy for peptic ulcer disease and for restoration of a 10 percent rating for bilateral hearing loss are well grounded, meaning they are not inherently implausible. 38 U.S.C.A. § 5107(a). The VA has a duty to assist a veteran in developing facts pertinent to a well-grounded claim. Id. We find that the RO has obtained all relevant evidence for equitable disposition of the claim and that no further VA assistance to the veteran is required to comply with the duty to assist him. I. Entitlement to an Increased Evaluation for Residuals of Vagotomy for Peptic Ulcer Disease A. Background. The veteran's service medical records show the presence of a duodenal ulcer. On VA examination shortly after discharge from service in August 1971, a chronic duodenal ulcer was found. At that time, the veteran weighed 163 1/2 pounds. A rating decision in October 1971 granted service connection for chronic duodenal ulcer and evaluated it 20 percent disabling from July 1971. A report of the veteran's VA examination in December 1977 notes that the veteran underwent vagotomy, enterectomy and a Billroth I anastomosis in 1974 for peptic ulcer disease. It was noted that the veteran had constant diarrhea and had been constantly losing weight. He weighed 145 pounds. The veteran stated that he was using Donnatal and tired easily. He was not anemic on inspection. The diagnoses were chronic peptic ulcer disease, intractable; enterectomy and vagotomy; and post gastrectomy syndrome. A rating decision in January 1978 increased the evaluation for chronic peptic ulcer disease from 20 percent to 40 percent, effective from November 1977. The veteran underwent VA examination in March 1987. He stated that surgical procedures in 1974 had eliminated his epigastric pain. He stated that he still had occasional dyspepsia and burning up into his chest, and bouts of diarrhea, particularly if he mixed liquids and solids together. He had been told that he did not have a dumping syndrome or ulcer. At the time of the examination he weighed 148 pounds. His abdomen was soft without tenderness or organomegaly. The impressions were past history of peptic ulcer disease; status post "B-1" with gastrectomy and vagotomy; episodic dyspepsia; and episodic diarrhea. A rating decision in March 1988 decreased the evaluation for chronic peptic ulcer disease from 40 percent to 30 percent, effective from November 1987. Private medical reports show that the veteran was seen for complaints associated with his service-connected gastrointestinal disorder in 1988 and 1989. A medical report shows that he underwent esophagogastroduodenoscopy in April 1988. The esophageal mucosa appeared entirely normal. There was no evidence of esophagitis, stricture, or Barrett's metaplasia. Examination of the stomach was hindered by the presence of a large amount of retained solid food, obscuring approximately one half of the gastric mucosa. The gastric pouch was small with diffuse erythema noted in the distal regions. The anastomosis was widely patent without evidence of ulcer, nor was there any friability. The duodenum appeared entirely normal. The procedure was uncomplicated and well tolerated by the veteran. The impressions were endoscopy showing Billroth I anatomy, questions of gastroparesis secondary to the vagotomy, and history consistent with gastroesophageal reflux. A private medical report, dated in December 1989, notes that the veteran was seen in October 1989 and continued to have diarrhea 2 to 3 times per week. It was opined that the veteran was suffering from dumping syndrome which occurred with liquids and probably had delayed gastric emptying of solids as a result of vagotomy. It was also noted that the veteran probably had lactose intolerance and that his reported weight was 134 pounds. The veteran underwent VA examination in February 1990. He stated that he avoided spicy foods and milk. He stated that the ingestion of milk resulted in rather immediate diarrhea. He also stated that he avoided liquids at mealtimes. He reported taking no medication for manifestations of his gastrointestinal disorder. His abdomen was soft and nontender and was nondistended. There were no masses or organomegaly. His weight was 149 pounds with clothes. The impressions were lactase insufficiency; and status post vagotomy and Billroth I surgery for chronic peptic ulcer disease in 1974. It was noted that the veteran was doing well with very infrequent dumping symptoms. The veteran testified at a personal hearing on appeal in October 1990. He stated that he avoided liquids shortly before and after meals because liquids around mealtime caused a dumping syndrome. He stated that he had occasional stomach pain. He stated that he took no medication for symptoms of his gastrointestinal disorder. The veteran underwent another VA examination in November 1990 to determine the severity of his gastrointestinal disorder. He weighed 138 pounds at the time of the examination. Examination of his abdomen revealed no palpable masses. There was moderate epigastric tenderness. He complained of intermittent diarrhea and of an inability to gain weight. The impression was post vagotomy and post gastrectomy syndrome with dumping and post vagotomy diarrhea. It was also noted that there had been evidence in the past of poor gastric emptying as characterized by gastric bezoar in 1988 and that he continued to have some regurgitant esophageal symptoms. B. Analysis In order to establish entitlement to an increased evaluation for residuals of vagotomy with peptic ulcer disease, the evidence must show manifestations of this disorder which meet or more nearly approximate the criteria for a higher rating under the appropriate diagnostic codes in the Schedule for Rating Disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.7 (1992). A 20 percent evaluation is warranted for mild post gastrectomy syndrome with infrequent episodes of epigastric distress with characteristic mild circulatory symptoms or with continuous mild manifestations. A 40 percent evaluation requires a moderate post gastrectomy syndrome with episodes of epigastric disorders with characteristic mild circulatory symptoms after meals, diarrhea and weight loss. A 60 percent evaluation requires a severe post gastrectomy 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, Code 7308. A 30 percent evaluation is warranted following a vagotomy with pyloroplasty or gastroenterostomy if there are symptoms and a confirmed diagnosis of alkaline gastritis or a confirmed persisting diarrhea. A 40 percent evaluation requires demonstrably confirmative postoperative complications of stricture or of continuing gastric retention. Code 7348. The evidence indicates that the veteran has diarrhea 2 or 3 times per week and occasional complaints of stomach pain. The evidence also indicates that the veteran's weight has stabilized to somewhere around 140 pounds which is less than his weight of approximately 163 pounds prior to surgery in 1974. A report of endoscopy in 1988 revealed a gastric bezoar and the evidence indicates that the veteran has occasional dumping syndrome which occur with the use of liquids around mealtimes. The evidence also indicates that the veteran has lactose intolerance and occasional regurgi- tant esophageal symptoms. After consideration of the overall evidence, including the veteran's testimony, and the provisions of both Diagnostic Code 7308 and 7348, we find that the preponderance of the evidence supports a 40 percent rating for the veteran's residuals of vagotomy and Billroth I surgery for peptic ulcer disease under Diagnostic Code 7308. The evidence, however, does not show malnutrition or anemia associated with the veteran's gastrointestinal disorder and a rating in excess of 40 percent is not warranted. II. Entitlement to Restoration of a 10 Percent Rating For Bilateral Hearing Loss A. Background. The service medical records show that the veteran had bilateral hearing loss. The veteran underwent VA audiologi- cal evaluation in November 1987 which showed that the veteran had bilateral hearing loss with an average pure tone decibel threshold of 37 decibels in the right ear, with no more than 55 decibels for any of the three frequencies measured (500, 1,000 and 2,000 hertz), and the left ear average pure tone decibel threshold was 32, with none more than 50 decibels for any of the same three frequencies measured. The rating decision of March 1988 granted service connection for bilateral hearing loss and evaluated it 10 percent disabling from November 1987 under the provisions of 38 C.F.R. § 4.85(c) and Diagnostic Code 6295, effective prior to December 18, 1987. The veteran underwent VA audiometric examination in February 1990. He had an average pure tone decibel loss (at 1,000, 2,000, 3,000, and 4,000 hertz) of 46 decibels with a 96 percent correct speech recognition ability in the right ear, and an average pure tone decibel loss at the same frequencies of 46 decibels with a 92 percent correct speech recognition ability in the left ear. It was noted that the veteran had bilateral hearing loss. The rating decision of April 1990 reduced the evaluation for bilateral hearing loss from 10 percent to a noncompensable evaluation, effective from July 1, 1990, under the provisions of Diagnostic Code 6100, effective from December 18, 1987. A private medical report shows that the veteran underwent audiometric evaluation in February 1990. A report of outpatient treatment received with the report of audiology notes that the veteran had bilateral hearing loss. The veteran testified at the personal hearing on appeal in October 1990 to the effect that his hearing loss had not improved despite the new VA rating standards for evaluating hearing loss. B. Analysis When evaluating the severity of hearing loss, if the decrease in evaluation is due to changed criteria or testing methods, rather than a change in disability, apply the old criteria and make no reduction. M21-1, paragraph 50.13b. A review of the evidence shows that the 10 percent rating for bilateral hearing loss was reduced from 10 percent to a noncompensable evaluation based on revised rating criteria that became effective on December 18, 1987. The United States Court of Veterans Appeals in Fugere v. Derwinski, 1 Vet.App. 103 held that such a reduction was improper and that an attempt to change the manual provision by memorandum by the VA Chief Benefits Director was contrary to the provisions of the Administrative Procedure Act. Thus, we conclude that the 10 percent evaluation for bilateral hearing loss should be restored. ORDER A rating of 40 percent for residuals of vagotomy and Billroth I surgery for peptic ulcer disease is granted, subject to the law and regulations governing the award of monetary benefits. Restoration of a 10 percent evaluation for bilateral hearing loss is granted, subject to the law and regulations governing the award of monetary benefits. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 * (MEMBER TEMPORARILY ABSENT) STEPHEN A. JONES J. F. GOUGH *38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of Veterans' Appeals Section, upon direction of the Chairman of the Board, to proceed with the transaction of business without awaiting assignment of an additional Member to the Section when the Section is composed of fewer than three Members due to absence of a Member, vacancy on the Board or inability of the Member assigned to the Section to serve on the panel. The Chairman has directed that the Section proceed with the transaction of business, including the issuance of decisions, without awaiting the assignment of a third Member. 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 (CONTINUED ON NEXT PAGE) 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.