Citation Nr: 0010860 Decision Date: 04/25/00 Archive Date: 05/04/00 DOCKET NO. 94-25 441 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUES 1. Entitlement to service connection for residuals of meningitis and encephalitis. 2. Entitlement to an increased rating for benign recurrent cholangitis, status post cholecystectomy with adjustment disorder, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Octavio A. Diaz-Negron, Esq. WITNESSES AT HEARING ON APPEAL Appellant and his wife INTRODUCTION The veteran had active service from January 1970 to January 1972. This case comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from the Department of Veterans Affairs (hereinafter VA) regional office in San Juan, Puerto Rico (hereinafter RO). In a statement dated in November 1997, the veteran raised the issue of entitlement to a total rating for compensation purposes based upon individual unemployability. This issue has not been developed for appellate review, and is therefore referred to the RO for appropriate disposition. FINDINGS OF FACT 1. The veteran does not have residuals of meningitis and encephalitis to include mild mental deficits which are associated to the veteran's previous, long-standing use of alcohol and have been found as not related to the veteran's episode of viral encephalitis while in service. 2. Manifestations of benign recurrent cholangitis, status post cholecystectomy, produce severe chronic cholangitis, with frequent attacks of gall bladder colic, with severe symptoms to include jaundice, the inability to eat fatty foods, constant right upper quadrant pain associated with distention and nausea, as well as fatigue and weakness. CONCLUSIONS OF LAW 1. Residuals of meningitis and encephalitis were not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303 (1999). 2. The criteria for an increased rating for benign recurrent cholangitis, status post cholecystectomy with adjustment order, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.114, Diagnostic Code 7316-7318 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon review of the record, the Board concludes that the veteran's claims are well grounded within the meaning of the statute and judicial construction. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990); 38 U.S.C.A. § 5107(a). The VA therefore has a duty to assist the veteran in the development of facts pertinent to his claim. In this regard, the veteran's service medical records, post-service private clinical data, and VA medical reports have been included in his file. Upon review of the entire record, the Board concludes that the data currently of record provide a sufficient basis upon which to address the merits of the veteran's claim and that he has been adequately assisted in the development of his case. I. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 101(16), 1110 (West 1991); 38 C.F.R. § 3.303. In addition, service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The veteran's service medical records reveal that in March 1970, the veteran complained of severe headaches and fever of eight days duration. The impression was questionable viremia, rule out meningitis. He was hospitalized with complaints of headache and a temperature of 102 degrees. The neurological signs for meningitis were reported as negative. During hospitalization, the veteran's headaches and fever abated and there was no evidence of nuchal rigidity. A lumbar puncture was performed and no pathology was found. The veteran was discharged from the hospital and found fit for duty. The final diagnosis was encephalitis, viral, meningeal. The veteran's service separation examination was negative of complaints or findings of meningitis or encephalitis, or residuals therefrom. At a VA neuropsychiatric examination conducted in June 1993, the examiner indicated that the veteran's performance on psychological tests was suggestive of some slight to mild mental deficits that may be associated not only to a history of meningoencephalitis but also to alcohol dependence and chronic liver disease. The veteran also presented significant emotional disturbance characterized by a combination of mild to moderate depression and persistent somatic concerns. A VA examination conducted in December 1997, found that the veteran was very manipulative and was in full contact with reality. He was observed as anxious and verborrheic, but was relevant and coherent in his responses. Content showed no evidence of delusions, hallucinations, or suicidal or homicidal ideas. The veteran stated that he experienced anxiety and panic reactions when under the effects of alcoholism. His affect was appropriate and his mood was anxious. He was oriented in person, place, and time. His memory was preserved in all areas. His intellectual capacity was maintained. His judgment was fair, but insight was reported as very poor. A social and industrial survey dated in January 1998, reported that the veteran had been unemployed since 1991. The veteran's house was noted as clean, both inside and out, and the veteran was clean and shaven. He stated that he stayed in his bedroom most of the time due to depression and reported that he experienced panic attacks during which he would become disoriented and accelerated thoughts. The veteran further reported physical symptoms of itching, diarrhea, constipation, and weakness. The veteran stated that he had abstained from alcohol for the previous two years. He reported that he spends his days reading, watching television, and gardening, with no social interactions with his neighbors. A neighbor described the veteran as a good person and would cut the neighbors grass and feed his horse. No abnormal behavior was reported. A comparative VA neuropsychiatric examination conducted in December 1997, yielded a very strong impression of inadequate compliance. The examination was discontinued because available results lacked internal consistency and could not presumed valid and reliable indicators of the veteran's mental status. A VA board of psychiatrists report dated in January 1998, concluded that the veteran did not have any difficulty understanding complex commands, nor did he have impaired judgment, and memory showed minimal problems. The board of psychiatrists took issue with the finding of H. Suarez Torres, M.D., dated in October 1996, which diagnosed schizoaffective disorder. In Dr. Suarez's report to the Social Security Administration in 1994, he reported no history of substance abuse, which included alcohol. Dr. Suarez also noted that the veteran's mental disorder did not affect his work history as it did not develop until after he quit his job. The final diagnosis was severe major depression, single episode. In the report dated in October 1996, Dr. Suarez failed to mention the veteran's alcohol dependence and stated that the veteran's symptoms began after he experienced encephalitis in service. The board of psychiatrists also noted that although G. J. Tirado, M.D., stated in 1996, that he was treating the veteran for schizophrenia, Dr. Tirado was a specialist in internal medicine and gave no description of symptomatology of schizophrenia. In conclusion, the board of psychiatrists found that the veteran's neuropsychiatric symptoms were separate from his somatic complaints. They also found that the private diagnoses of schizoaffective disorder, schizophrenia, and major depression were incorrect, and accordingly, could not be related to a service-connected disorder. It was their unanimous opinion that there was no relationship between the veteran's mental deficits and the viral encephalitis he experienced in service. They further found that some of the veteran's cognitive functions had been affected mildly as a consequence of previous, long-standing use of alcohol. The diagnoses were substance use disorder, alcohol dependence in apparent remission; anxiety disorder with depressive features; and very strong borderline personality features with anti-social traits. A report from Dr. Suarez Torres dated in February 1998, provided a diagnosis of schizoaffective disorder bipolar type. Although Dr. Suarez Torres reported the veteran's history, there was no mention of the veteran's previous alcohol abuse. The veteran alleged that he started drinking after, and as a consequence of, his viral encephalitis; however, the evidence of record contradicts this allegation. In March 1980, the veteran gave a history of starting drinking in his early teens. Thereafter, he stated that he began drinking at the age of 14 years old. A VA hospital summary dated in 1981, reported that the veteran began drinking at 13 to 14 years of age. Although a VA neuropsychiatric examination reported in 1993, that the veteran's performance on psychological tests was suggestive of some slight to mild mental deficits that may be associated not only to a history of meningoencephalitis but also to alcohol dependence and chronic liver disease, the board of psychiatrists in 1998, based on their examination of the veteran and after a review of the report in 1993, as well as the complete medical evidence of record, concluded that the mild mental deficits were associated only to the veteran's previous, long-standing use of alcohol and were not related to the veteran's episode of viral encephalitis while in service more than 25 years previously. Accordingly, the Board finds that the preponderance of the evidence is against the veteran's claim of entitlement to service connection for residuals of meningitis and encephalitis, and therefore must be denied. II. Increased Rating With respect to the veteran's claim for an increased rating for benign recurrent cholangitis, status post cholecystectomy with adjustment order, disability ratings are based, as far as practicable, upon the average impairment of earning resulting from the disability. 38 U.S.C.A. § 1155. The average impairment is set forth in the VA's SCHEDULE FOR RATING DISABILITIES (hereinafter SCHEDULE), codified in 38 C.F.R. Part 4 (1999), which includes diagnostic codes that represent particular disabilities. The pertinent diagnostic codes and provisions will be discussed below as appropriate. Service medical records reveal the veteran was diagnosed with recurrent intrahepatic cholestasis. By a rating decision dated in January 1973, service connection for hepatitis was granted and a 10 percent evaluation was assigned. In October 1982, the veteran was hospitalized for a sudden onset of right upper quadrant pain, jaundice, pruritus, and anorexia. Liver function tests were elevated on admission, but had decreased to normal after two weeks. The diagnosis was benign recurrent intra-hepatic cholestasis. The veteran was hospitalized in March 1985. A liver function test was normal; however, a liver biopsy showed evidence of benign, recurrent cholestasis. A sonogram confirmed the diagnosis of cholelithiasis and the veteran underwent a cholecystectomy. A private medical record dated in March 1986 reported atypical sclerosing cholangitis that interfered with a normal life style and the ability to maintain steady employment. An additional private medical record in April 1986, reported that attempts to treat the veteran's "attacks" had been met with little response. A private medical record dated in October 1987, reported that the veteran had regular attacks of jaundice with intense pruritus and burning of the skin that occurred several times a year, and lasted for as long as 6 to 8 weeks. It was noted that this disorder had a "huge" psychological impact and the veteran had developed nervousness and insomnia due to his service-connected disorder. Thereafter, a VA neuropsychiatric examination dated in December 1987, reported that during the veteran's "attacks," he experienced jaundice, severe diarrhea, and had no energy. It was noted that the veteran would become depressed during the attacks. The diagnosis was adjustment disorder, secondary to his service-connected disorder. A general VA examination conducted that same month noted that since the initial diagnosis of benign recurrent idiopathic cholestasis, the veteran had continued to have frequent attacks of jaundice, pain, and pruritus. The diagnoses were benign recurrent idiopathic cholestasis and status post cholecystectomy. Based on this information, the RO granted service connection an adjustment disorder, secondary to the veteran's service-connected disorder, and granted a 30 percent disability rating for benign recurrent cholangitis, status post cholecystectomy, with adjustment disorder. A VA psychiatric examination conducted in August 1988, reported that the veteran's attacks lasted 6 to 8 weeks and included jaundice, pruritus, weakness, and alternating diarrhea and constipation. In addition, he would become depressed and consider suicide. The diagnoses included adjustment disorder, secondary to physical problems. A VA general examination diagnosed benign recurrent cholestasis, by history. VA opinions dated in June 1989, reported that the veteran had an adjustment disorder, due to his chronic liver disease, with symptoms of anxiety, excessive worrying and fear, irritability, sleep disorders, and mood swings to include anger and depression. A VA neuropsychological report dated in June 1993, reported diagnostic impressions of an organic mental disorder, not otherwise specified, and dysthymia. A psychiatric report prepared for the Social Security Administration in March 1994, found severe major depression, single episode. Thereafter, the veteran was diagnosed with schizoaffective disorder and schizophrenia. The veteran testified at a personal hearing before the Board in April 1996, that he experienced poor sleep, poor relations with people, had no friends, depression, aggressive behavior, loss of interest, heard voices, alcohol problems, abdominal pain, the inability to eat fatty foods, and that he did not like to be in groups. A VA examination conducted in August 1996, found no hepatosplenomegaly or palpable masses. Normal stools and peristalsis were found, with no ascites. Nonspecific, diffuse, abdominal discomfort was reported, as well as an intolerance for fatty food. The veteran noted occasional nausea and vomiting, with moderate pain. The veteran stated his appetite was variable but felt mostly anorexic. He reported generalized weakness and malaise but had not lost significant weight since service discharge. The diagnoses included status post benign recurrent cholestasis since 1972 and status post cholecystectomy for gallstones, as well as hepatitis C. A VA psychiatric examination conducted in August 1996, reported diagnoses of alcohol dependence, in remission; anxiety disorder with depressive features; and borderline personality traits. It was the opinion of the examiner that the neuropsychiatric disorder was related to the veteran's service-connected gastric disorder. A VA psychiatric examination conducted by a board of psychiatrists in December 1997, concluded that the veteran's neuropsychiatric symptoms were separate from his somatic symptoms. As noted previously, the board of psychiatrists also found that the diagnoses of schizoaffective disorder, schizophrenia, and major depression were not correct. Thereafter, at VA examination conducted in May 1999, the veteran denied vomiting or hematemesis, and reported occasional melena episodes. He complained of constant right upper quadrant pain associated with distention and nausea, as well as fatigue, weakness, depression, and anxiety. On examination, the right upper quadrant cholecystectomy incision was well healed and there was no hepatomegaly or ascites. There was no history of weight changes, steatorrhea, malabsorption, or malnutrition. Adequate strength with no muscle wasting was shown. The diagnoses were recurrent intrahepatic cholestasis, status post cholecystectomy, hepatitis C, and chronic ethanolism. A VA psychiatric examination conducted at this time found no evidence of an adjustment disorder. The examiner stated that the diagnosis of Adjustment Disorder is a diagnosis that has a very specific criteria when it is made. First of all diagnosis of Adjustment Disorder is made when there is a development of emotional or behavioral symptoms in response to an identifiable stressor occurring within three months of the onset of the stressor. Diagnosis of Adjustment Disorder ymptoms cannot persist for more then (sic) an additional six months after they appear for the first time or if the stressor has been terminated. If the emotional disturbance lasts for six months or longer, then the diagnosis has to be changed to another psychiatric disorder depending on the symptoms originally described. . . . From the evidence that is clear all throughout the veteran's records this veteran's persistent symptoms have been those of Chronic Alcoholism. . . . Therefore, we do not consider that diagnosis of Adjustment Disorder is present in this veteran at present. His principal diagnosis is of Alcohol Dependence. . . . The veteran's service-connected benign recurrent cholangitis, status post cholecystectomy with adjustment disorder, is currently rated under the provisions of 38 C.F.R. § 4.114, 4.130, Diagnostic Codes 7316-7318, 9410 (1999). The criteria in the SCHEDULE for evaluating the degree of impairment resulting from service-connected adjustment disorder were changed during the course of the veteran's appeal. Compare 38 C.F.R. § 4.132, Diagnostic Code 9410 (1996), with 61 Fed.Reg. 52695-52702 (Oct. 8, 1996), to be codified at 38 C.F.R. § 4.130, Diagnostic Code 9410 (1999). However, in this case, the RO reviewed the veteran's claim under the new criteria, and it provided the veteran with the new criteria in a supplemental statement of the case. Accordingly, the Board concludes that the veteran will not be prejudiced by the Board's review of his claim on appeal because due process requirements have been met. VAOGCPREC 11-97 at 3-4 (Mar. 25, 1997); Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993); Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). Diagnostic Codes 7316 contemplates chronic cholangitis, and is rated as for chronic cholecystitis, under 38 C.F.R. § 4.114, Diagnostic Code 7314 (1999). A 30 percent disability evaluation is for assignment for severe chronic cholangitis, with frequent attacks of gall bladder colic. 38 C.F.R. § 4.114, Diagnostic Code 7314, 7316. This is the maximum schedular rating under these diagnostic codes. Additionally, Diagnostic Code 7318 provides a 30 percent evaluation for removal of the gallbladder with severe symptoms. This is the maximum schedular rating under this diagnostic code. Although the Board has considered assigning a separate, compensable evaluation for an adjustment disorder secondary to the veteran's service-connected benign recurrent cholangitis, status post cholecystectomy, the most recent evidence of record reports that the veteran does not currently have a psychiatric disorder associated to this service-connected disorder, to include an adjustment disorder. Accordingly, a separate compensable evaluation for an adjustment disorder, secondary to the veteran's service-connected benign recurrent cholangitis, status post cholecystectomy is not warranted. ORDER The claim of entitlement to service connection for residuals of meningitis and encephalitis is denied. The claim of entitlement to an increased rating for benign recurrent cholangitis, status post cholecystectomy with adjustment order is denied. JOY A. MCDONALD Acting Member, Board of Veterans' Appeals - 2 - - 9 -