Citation Nr: 0011584 Decision Date: 05/03/00 Archive Date: 05/09/00 DOCKET NO. 92-15 630 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE The propriety of the initial 30 percent rating assigned for primary sclerosing cholangitis. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B.E. Jordan, Counsel INTRODUCTION The veteran had active military service from July 1967 to January 1989. This appeal to the Board of Veterans' Appeals (Board) arises from a May 1990 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In that determination, the RO granted service connection for residuals of sclerosing cholangitis, and assigned a noncompensable evaluation, effective February 1, 1989. The veteran timely appealed that determination to the Board. In May 1994, the Board remanded this matter to the RO for further development and adjudication, and the Board is satisfied that the RO has complied with the remand directives. During the course of this appeal, in June 1992, the RO increased the evaluation for the disability at issue to 30 percent and assigned an effective date of February 1, 1989 (the date of the grant of service connection). However, inasmuch as a higher evaluation is available for this condition, and the veteran is presumed to seek the maximum available benefit for a disability, the claim remains viable on appeal. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); AB v. Brown, 6 Vet. App. 35, 38 (1993). Indeed, in VA Form 646 dated in August 1992, the veteran's representative asserted that the veteran was entitled to a rating in excess of 30 percent. Further, because the veteran has disagreed with the initial rating assigned, the Board has recharacterized the issue issue accordingly. See Fenderson, 12 Vet. App. at 126. FINDINGS OF FACT 1. All the evidence necessary for an equitable disposition of this appeal has been obtained. 2. The medical evidence reflects that, since February 1, 1989, the service-connected primary sclerosing cholangitis has been manifested by constant pruritus, chronic abdominal discomfort, nausea, increased liver enzymes, and fatigue. 3. No unusual or exceptional disability factors have been presented with respect to the service connected primary sclerosing cholangitis. CONCLUSION OF LAW The criteria for an initial grant in excess of 30 percent for primary sclerosing cholangitis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.114, Diagnostic Codes 7312, 7314, 7316, and 7345 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION A. Background Service medical records reflect that the veteran was seen for complaints of abdominal pain beginning in 1988. Laboratory studies revealed elevated alkaline phosphate. In March 1989, a liver function test was elevated. A liver biopsy dated in July 1989 revealed patchy portal fibrosis consistent with primary sclerosing cholangitis. The report of a VA compensation and pension examination (VA examination) dated in February 1990 revealed, in pertinent part, that the veteran was experiencing minimal pruritus. The diagnoses included biopsy and endoscopic retrograde cholangiopancreatography (ERCP) documented primary sclerosing cholangitis and current minimal pruritus. Based on the foregoing, in a May 1990 rating action, the RO granted service connection for sclerosing cholangitis and assigned a noncompensable evaluation pursuant to 38 C.F.R. § 4.114, Diagnostic Code (DC) 7316, effective February 1, 1989. The report of a VA examination dated in June 1991 revealed, in pertinent part, that the veteran's abdomen was soft with positive bowel sounds and nontender. His liver measured as 11-12 centimeters (cm) in span and had a slightly firm edge. There was no spleen tip, and no masses were palpated. The examiner assessed that the veteran's sclerosing cholangitis was very serious and that it had a variable course. It was noted that employers were cautious and reluctant to employ someone with the veteran's liver disability and associated medical problems. During a personal hearing dated in September 1991, the veteran provided testimony with respect to his sclerosing cholangitis. In general, the veteran testified that the symptoms associated with the service-connected disability were more disabling than currently evaluated. He reported symptoms consistent with those noted in the medical evidence of record. In addition, it was asserted that the veteran's disability was mischaracterized and mishandled as a disease pertaining to the gallbladder instead of being treated as a disease affecting the liver. In a statement dated in September 1991, an Assistant Chief of Gastroenterology with the Department of Army stated that the veteran's disability is a progressive disease that will eventually result in liver failure and require a liver transplant. The author indicated that there was no definite treatment to prevent progressive fibrosis of the liver and that the veteran's liver enzymes have not normalized, despite treatment. A VA examination dated in April 1992 showed that there were no palpable organs, masses, or tenderness in the abdomen. In May 1992, a hearing officer increased the disability evaluation for sclerosing cholangitis to 30 percent. In a June 1992 rating action, the RO implemented the hearing officer's determination and assigned an effective date of February 1, 1989. Pursuant to the May 1994 remand, the veteran was afforded a VA examination in June 1994. At that time, the veteran complained of intermittent right upper quadrant abdominal pain accompanied by nausea and pruritus. There was no vomiting. The veteran reported that he was able to eat without problems, that his appetite was good, and that his weight was stable. The examiner noted that the veteran has had serial liver enzymes, that his transaminases have been running in the 60 to 80 aspartate transaminase (AST) range with alanine transaminase (ALT) running between 80 to 104. In 1991, the gamma glutamyl transpeptidase (GTP) was 329 and 491 in January 1994. The examiner further indicated that alkaline phosphatese, albumin total proteins had been normal. It was noted that the veteran has been on Actigall 300 milligrams (mg) three times a day since March 1994, that the veteran had not had any response to the Actigall, and that the veteran's liver enzymes have continued to elevate (especially the gamma-GTP). A physical examination of the abdomen was negative for significant tenderness to palpation. The liver edge was not palpable; there was no organomegaly. It was noted that the veteran would provide recent liver enzyme testing. The diagnoses included primary sclerosing cholangitis with gradual increase in liver enzyme, despite being on Actigall. In June 1994, the veteran underwent VA mental examination and Social Survey for Mental Disorders. During the examination, the veteran denied experiencing any emotional problems. It was noted that the veteran was employed. He reported feeling lethargic especially after working a full week. A mental status examination revealed that the veteran was alert, cooperative, oriented to three spheres. The veteran was dressed and groomed appropriately. His speech was coherent, relevant, and goal directed. His affect and mood were neutral. He denied any suicidal or homicidal thoughts. The examiner opined that the lethargy could be related to the veteran's liver disease. The examiner indicated that there could be some mild depression, but the veteran's symptoms did not support such a diagnosis. No diagnosis was entered. Likewise, the Social Survey showed that there was no evidence of a psychiatric disability. Although the veteran indicated that he wanted to go into commercial aviation, but that no commercial airline would hire him because of his "health problems," it was noted that he had then been employed with the Department of Transportation for two years. When examined in October 1995, the veteran reported continued occasional dull right upper quadrant abdominal pain that was not associated with meals. He related that fatty meals tended to cause cramping and diarrhea and that he experienced occasional nausea and some diarrhea. He complained of chronic generalized pruritus. His medication was Ursodiol. On physical examination, the examiner observed that the veteran did appear to in any acute distress and that he appeared to be well. He weighed 185 pounds. There was no icterus and no spider angiomata. The skin turgor was normal. The examiner observed that the abdomen was soft and nontender. The liver span was 9 cms to percussion in the midclavicular line. There was no organomegaly. The diagnosis was history of primary sclerosing cholangitis with liver function test obtained in June 1994 showing moderate transamnionites with ALT of 87, AST of 60, GGT of 370, alkaline phosphatase of 94, and total bilirubin of .6. The record shows that studies were performed in October 1995. The examiner noted that the veteran sent for a complete blood count (CBC) with differential, liver panel and thyroid stimulating hormone which were mildly elevated in January 1994. During a VA examination in October 1999, the veteran complained of daily intermittent abdominal discomfort that lasted from a few hours to an entire day with occasional sharp pain, and itching after the onset of symptoms. Additional complaints included easy fatigue within the past three to four years. It was noted that the veteran has never been jaundiced, that hepatitis serologies have been negative, and that the liver functions test have disclosed varying degrees of abnormality. The examiner noted that the veteran's weight has been constant at 190 pounds. The veteran reported having bouts of diarrhea related to food consumption that recurred three to four times per week with two to three liquid stools. There was no bleeding. It was noted that the veteran has two formed stools per day. The veteran denied having any mental problems, except he noted that "I get a little down sometimes thinking about what I've got." There has been no edema. It was noted that the veteran was employed and that he has not lost any time from work because of his illness. On physical examination, the examiner described the veteran has a stocky, slightly obese. There was no jaundice or anemia or no stigmata of itching. The veteran was alert and active, well developed, well nourished. His gait and stance were normal. The abdomen disclosed an increased panniculus without probable mass, hepatosplenomegaly with tenderness, or ascites. There was normal abdominal venous vasculature. The extremities were normal with no clubbing, palmar erythema, or asterixis. There was no pedal edema. The diagnostic impression was sclerosing cholangitis. The examiner noted that liver function tests were marginally abnormal with normal bilirubin and prothrombin time. B. Analysis As a preliminary matter, the Board finds that the veteran's claim regarding the propriety of the initial 30 percent evaluation assigned for his service-connected sclerosing cholangitis is plausible and capable of substantiation and is therefore well grounded within the meaning of 38 U.S.C.A. § 5107(a); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 629, 631-632 (1992). When a claimant submits a well-grounded claim, VA must assist him in developing facts pertinent to the claim. Id. The Board is satisfied that all available relevant evidence has been obtained regarding the claim and that no further assistance to the veteran is required to comply with 38 U.S.C.A. § 5107(a). Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7 (1999). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3 (1998). The veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1 (1998); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Before proceeding with its analysis of the veteran's claim, the Board finds that some discussion of the Fenderson case is warranted. In that case, the United States Court of Appeals for Veterans Claims (Court) emphasized the distinction between a new claim for an increased evaluation of a service- connected disability and a case in which the veteran expresses dissatisfaction with the assignment of an initial disability evaluation where the disability in question has just been recognized as service-connected. In the former case, the Court held in Francisco v. Brown, 7 Vet. App. 55, 58 (1994), that the current level of disability is of primary importance when assessing an increased rating claim. In the latter case, however, where, as here, the veteran has expressed dissatisfaction with the assignment of an initial rating, the Francisco rule does not apply; rather, the VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim - a practice known as "staged rating." For the reasons set forth below, the Board finds that a remand to consider "staged rating" is unnecessary. The service-connected sclerosing cholangitis is evaluated under the Rating Schedule provision for the digestive system. 38 C.F.R. § 4.114. This section provides that diagnostic codes 7301 to 7329, inclusive, 7331, and 7345 to 7348 inclusive will not be combined with each other. A single evaluation will be assigned under the diagnostic code that reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such evaluation. Id. The veteran's service-connected sclerosing cholangitis is currently evaluated under Diagnostic Code 7316, which prescribes that chronic cholangitis is rated as chronic cholecystitis. Under DC 7314, a 30 percent disability evaluation is assigned for severe chronic cholecystitis manifested by frequent attacks of gall bladder colic. The Board notes that the 30 percent is the maximum evaluation under that schedular rating. Thus, a higher schedular evaluation may only be assigned pursuant to evaluation, alternatively, under another diagnostic code. DC 7312 is for consideration. Under that code, a 100 percent evaluation is assigned for pronounced cirrhosis of the liver with aggravation of the symptoms for moderate and severe, necessitating frequent tapping. A 70 percent evaluation is assigned for severe disability with ascites requiring infrequent tapping, or recurrent hemorrhage from esophageal varices, aggravated symptoms and impaired health. A 50 percent evaluation is assigned for moderately severe disability manifested by definitely enlarged liver with abdominal distention due to early ascites and with muscle wasting and loss of strength. A 30 percent evaluation is assigned for moderate disability with dilation of superficial abdominal veins, chronic dyspepsia, slight loss of weight or impairment of health. DC 7345 is also for consideration. Under DC 7345, a 100 percent disability evaluation is assigned for infectious hepatitis with marked liver damage manifest by liver function test and marked gastrointestinal symptoms, or with episodes of several weeks duration aggregating three or more a year and accompanied by disabling symptoms requiring rest therapy. A 60 percent evaluation is assigned where there is moderate liver damage and disabling recurrent episodes of gastrointestinal disturbance, fatigue, and mental depression. A 30 percent evaluation is assigned where there is minimal liver damage with associated fatigue, anxiety, and gastrointestinal disturbance of lesser degree and frequency but necessitating dietary restriction or other therapeutic measures. A 10 percent evaluation is assigned where there is demonstrable liver damage with mild gastrointestinal disturbance. Following a careful review of the record, however, the Board finds that a higher disability evaluation is not warranted under either diagnostic code. The Board has fully considered the veteran's medical history of complications and symptoms involving the service-connected primary sclerosing cholangitis. In that connection, medical records document consistent complaints of pruritus. In June 1994, October 1995, and October 1999, the veteran complained of upper quadrant abdominal pain and nausea. However, since the effective date of grant of the initial 30 percent evaluation, the medical evidence establishes that the veteran's weight has been stable. The medical studies and opinions since 1991 show marginally abnormal liver function tests. The October 1999 evidence establishes that the veteran has incurred minimal liver damage, that he complained of easy fatigue after a few hours, and that there was an increased abdomen panniculus without probable mass, hepatosplenomegaly, or ascites. Even considering the veteran's liver dysfunction as the predominant problem associated with the veteran's disability, warranting consideration pursuant to DC 7312, the medical evidence does not establish that the disability at issue is manifested by moderately severe cirrhosis with definite liver enlargement, abdominal distention due to early ascites, muscle wasting and loss of strength. Therefore, the Board finds that the criteria for a rating in excess of 30 percent evaluation under 38 C.F.R. § 4.114, Diagnostic Codes 7312 is not warranted. The Board must reach a similar conclusion with respect to evaluation of the disability under DC 7345. The Board recognizes that the veteran complained of fatigue in 1999, and that he has complained of gastrointestinal discomforts manifested by abdominal pain and nausea; however, there is no evidence that such discomforts have been disabling. The Board notes that the veteran indicated that his disability affects him at times. However, there is no competent medical evidence of mental depression related to his disability. Thus, there is no basis for assignment of a rating in excess of 30 percent under DC 7345. The above determination is based on application of pertinent provisions of the VA's Schedule for Rating Disabilities, and there is no showing that the veteran's primary sclerosing cholangitis reflects so exceptional or so unusual a disability picture as to warrant the assignment of a higher evaluation on an extra-schedular basis. For example, the Board notes that the disability is not objectively shown to have markedly interfered with employment (i.e., beyond that contemplated in the assigned ratings). It this regard, it was noted in June 1991 that the veteran encountered employment difficulty with respect to his cholangitis, and he has indicated that he has been unable secure employment in a certain field (commercial aviation). However, the Board emphasizes that the current 30 percent evaluation contemplates some interference with employment; beyond that simply is not shown. Medical records dated in 1994 and 1999 reflect that the veteran has been consistently employed, and in 1999, the veteran related that he had not lost any time from work because of his illness. The evidence also does not show that the condition warrants frequent periods of hospitalization, or that there are other associated factors that render impractical the application of the regular schedular standards. In the absence of evidence of such factors as those outlined above, the Board is not required to remand the claim to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For all the foregoing reasons, the Board finds that the record presents no basis for granting a compensable evaluation for sclerosing cholangitis at any point since February 1, 1989, the effective date of the grant of service connection for residuals of sclerosing cholangitis. Further, inasmuch as the 30 percent evaluation represents the greatest degree of impairment since the date of grant of service connection, "staged rating" is unnecessary. See Fenderson, 12 Vet. App. at 126. Hence, the claim must be denied. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. See 38 U.S.CA. 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER As the initial 30 percent evaluation assigned for primary sclerosing cholangitis was proper, the claim for a higher evaluation must be denied. JACQUELINE E. MONROE Member, Board of Veterans' Appeals