Citation Nr: 0206010 Decision Date: 06/07/02 Archive Date: 06/13/02 DOCKET NO. 96-00 115A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to an increased evaluation for injury, intra- abdominal, affecting the liver, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. Ward, Associate Counsel INTRODUCTION The veteran had active service from November 1951 to November 1953. His decorations include the Korean Service Medal with three bronze stars, and the Combat Infantryman Badge. This appeal comes before the Board of Veterans' Appeals (Board) from a June 1995 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico, which denied a rating in excess of 10 percent for injury, intra abdominal, affecting the liver. The veteran filed a notice of disagreement in August 1995, and after issuance of the statement of the case in December 1995, a substantive appeal was received in January 1996. In October 1996, the veteran testified before a hearing officer at the RO. A copy of the transcript of that hearing is of record. Although two other issues were rated in the decision, the veteran withdrew his appeal on the issue of an increased rating for scars at his October 1996 hearing. As regards the issue of an increased rating for muscle group XX, gunshot wounds, thoraco lumbar injury, the maximum was granted by rating decision of February 1997 (this was the evaluation sought by the veteran, see the October 1996 hearing transcript). Thereafter, by VA form 646 dated in November 2001, the veteran confirmed his appeal only on the issue of an increased rating for intra-abdominal injury, affecting the liver. Thus the only issue properly before the Board is as listed on the title page. See 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 20.302 (2001). See also Johnston v. Brown, 10 Vet. App. 80, 85 (1997). FINDINGS OF FACT 1. All relevant available evidence necessary for resolution of the veteran's claim has been obtained by the RO. There has been appropriate notice, and there is no indication of additional evidence that could be obtained that would affect the outcome as to this issue. 2. The veteran's service-connected injury, intra-abdominal, affecting the liver is presently manifested by subjective complaints of abdominal discomfort, pain, nausea, constipation (perhaps alternating with diarrhea), and vomiting or abdominal distension, productive of moderate impairment of adhesions; moderately severe adhesions of partial obstruction manifested by delayed motility of barium meal and less frequent and less prolonged episodes of pain, or severe adhesions manifested by definite partial obstruction shown by x-ray, with frequent and prolonged episodes of severe colic distension, nausea or vomiting, following severe peritonitis, ruptured appendix, perforated ulcer, or operation with drainage, are not shown. CONCLUSION OF LAW The schedular criteria for an evaluation in excess of 10 percent for injury, intra-abdominal affecting the liver, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991 & Supp. 2001); 38 C.F.R. §§ 4.1-4.14, 4.112, 4.114, Part 4, Diagnostic Codes 7301, 7200-7348 (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background The veteran and his representative contend, in substance, that the veteran's service-connected injury, intra- abdominal, affecting the liver is more disabling than currently evaluated. It is noted that the veteran has a history of combat-related gunshot wounds to the thoracolumbar area with a penetrating wound in the right paraspinal region about T10 level. Exploratory laparotomy was performed at that time which revealed a fragment in the liver. There was secondary closure of the wound in the back area, and a two month hospitalization in service. Service connection was granted, with a 10 percent rating effective from November 1953, which has remained unchanged. VA outpatient treatment records and progress notes for the period June 1990 to September 1994 reflect treatment mostly for low back pain. May 1994 progress notes show complaints of pain and flatulence, with a diagnostic impression of diverticulosis confirmed by barium enema in June 1994. July 1994 progress notes show that abdominal symptoms had resolved, and diverticulosis was stable with no complications expected. On February 1995 VA compensation and pension examination the veteran complained of pain in the scar areas with radiation to both legs, and worsening pain upon sitting for a long time. Physical examination revealed tissue loss comparison with muscle atrophy of the right thoracolumbar spinal muscles from T10 level, with scars, one in the abdominal area. Closer examination of the scars showed an exploratory laparotomy scar in the abdominal area, 10 cm long, 1 cm. wide, brownish in color, with keloid tissue and tender to palpation. There was another scar on the right thoracic area paraspinal muscles at the T-10 level, 8 cm. long and 3/4 cm. wide, L-shaped, tender to palpation with loss of color. Muscle atrophy of right thoracic paraspinal muscles was noted, with the scars somewhat cosmetically disfiguring. They had good vascular supply, and the scar on the back was noted as limiting the function of the thoracic area. Diagnoses were residuals of gunshot wound thoracolumbar area; clinical left S1 radiculopathy; thoracolumbar paravertebral fibromyositis; status post exploratory laparotomy; metallic fragments at the thoracolumbar junction, and degenerative joint disease of the lumbar spine by x-rays. February 1995 lumbosacral spine x-rays series showed that two metallic fragments were noted at the right side, posteriorly of the previous gunshot wound. Mild atheromatous changes of the distal abdomen were noted. Diagnostic impressions were spondylosis deformans; and metallic fragments from previous gunshot wound projecting at the thoracolumbar junction area in the posterior soft tissues. X-rays of the dorsal spine showed a metallic fragment projecting at the posterior soft superimposed upon the 11th rib on the right side posteriorly. In the currently appealed rating decision of June 1995, the RO continued the 10 percent rating under Diagnostic Code (DC) 7301. In January 1996, the veteran underwent VA examination. He complained of heartburn, epigastric distress, and bloating treated with medications from his private physician. Nausea and vomiting were noted as very rare, and appetite as good. There was no specific weight loss, no specific food intolerance, and no generalized weakness. The examiner noted shrapnel fragments in the liver, but that the veteran had never been icteric or shown evidence of portable hypertension or any other significant hepatic problem. Objective findings revealed no icterus, asterixis, stigma or evidence of chronic liver disease. A large surgical scar was noted above the sternum from shrapnel wounds removal. The abdomen was soft, depressible, with no hepatomegaly or ascites. A diagnosis of no significant hepatic disease secondary to shrapnel fragments remaining in the liver, was noted. In an October 1996 hearing at the RO, the veteran testified that since the operation for shrapnel wounds he has felt discomfort and feels that food gets "blocked in," with a burning sensation. He testified to taking medication for "burping" and gas since his stomach "swells up." He complained of fatigue, frequent pain when breathing, nausea, indigestion, reflux, and a feeling of obstruction in his stomach that prevented food from going down every time he eats. He reported food intolerance and bowel obstruction at times, vomiting, diarrhea, and constipation, which required him to take medications such as Gaviscon, Maalox or laxatives. He admitted to receiving no current medications from VA for these complaints, except Maalox in the past, and to receiving treatment at VA only twice during the previous two years for these complaints. He asserted treatment by his private physicians. In December 1996, he submitted a letter from a private physician which indicated treatment in December 1995 for recurrent low back pain, upper abdominal quadrant pain, and recurrent moist lungs expectorations. The physician noted that in the previous six months the veteran had developed continuous epigastric pain with a burning sensation controlled with Zantac. Diagnoses noted were lumbo-sacral radiculopathy; cervico-thoracic radiculopathy; chronic abdominal pain secondary to abdomino-thoracic war wounds; and peptic ulcer disease. Barium swallow and upper GI series performed in January 1997 revealed no present treatment for a liver condition, and no evidence of a sliding hiatal hernia. Gastroesophageal reflux was observed fluoroscopically. Examination of the stomach showed normal mucosal pattern and peristaltic activity, with no evidence of antral or duodenal deformity. There was some thickening of the mucosa of the second and third portion of the duodenum. A diagnostic impression of thickened duodenal and jejunal mucosa slightly related to a history of chronic liver disease, was noted. Incidentally, metallic fragments were identified in the abdominal wall. January 1998 CT (computed tomography) scan of the abdomen showed the liver, spleen and pancreas to be average in size and of homogeneous density. There were no focal hepatic, splenic or pancreatic masses. Diagnostic impression was of a metallic artifact at the right lateral abdominal wall adjacent to the liver periphery presumably representing a fragment from a previous gun shot wound, by history. The examiner noted an "otherwise unremarkable" enhanced CT scan of the abdomen. A November 1998 sonogram of the abdomen noted the liver to be of normal size and homogeneous echotexture. No intra or extrahepatic biliary ductal dilatation was present. The gallbladder and both kidneys were normal. The spleen, pancreatic region as well as the proximal retroperitoneal great vessels were noted as grossly unremarkable, with no collateral circulation detected. Impression was one of renal medical disease. In the report of a September 2000 VA compensation and pension intra-abdominal examination for liver, gall bladder and pancreas, the examiner noted that the veteran's claim folder and medical record were not available for the evaluation, however, his computer file showed treatment for various conditions. The veteran complained of fatigue but no weakness, and epigastric pain associated with heartburn. He denied any blood transfusions or hepatitis. Physical examination showed a mid-abdominal supraumbilical small well-healed scar. Peristalsis was normal, and the abdomen was soft and depressible with no palpable organomegaly. There was no evidence of ascites or malnutrition, and no history of weight changes, steatorrhea, malabsorption melena, or hematemesis. The liver was noted as normal size without superficial abdominal veins and no signs of liver disease on physical examination. The examiner reported that July 2000 liver function tests were within normal limits, as were CBC and urinalysis. February 2001 to September 2001 VA primary care follow-up notes show treatment for unrelated conditions. A February 2001 note showed bowel sounds were present at all quadrants, and the abdomen was non-tender, non-distended, soft and depressible, with no masses or organomegaly, with the veteran described as well nourished and well developed. In August 2001 VA progress notes, the veteran complained of continuous gasses in his stomach. As regards to weight loss, the evidence shows that in the most recent September 2001 VA outpatient treatment notes, the veteran is described as well-nourished and well developed, with February and June 2001 weights noted at 189 pounds; in September 2000 VA examination he was similarly described, with weight at 188 pounds; May and June 1994 outpatient notes noted weight at 1851/2 and 189 pounds, respectively. Legal Analysis Duty to Assist Preliminarily, the Board notes that during the pendency of this claim, the Veterans' Claims Assistance Act of 2000 (VCAA) was signed into law. This legislation is codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West Supp. 2001). It essentially eliminates the requirement that a claimant submit evidence of a well-grounded claim, and provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim, but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. It also includes new notification provisions. Specifically, it requires VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Regulations implementing the VCAA are now published at 66 Fed. Reg. 45,620, 45,630-32 (August 29, 2001) (to be codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326). Except as specifically noted, the new regulations are effective November 9, 2000. The Board is satisfied that all relevant facts have been properly developed and no further assistance to the veteran is required in order to comply with the duty to assist under the VCAA. The RO has collected all identified medical records. The veteran was provided notice of the applicable laws and regulations in the rating decisions, statements and supplemental statements of the case, and specifically notified of his rights under the VCAA in September 2001. He was also afforded several medical examinations and a hearing at the RO, after which testimony he was afforded time to submit additional private and VA medical records. Thus VA has satisfied its duties to notify and to assist the veteran, and further development and expending of VA's resources is unwarranted. Adjudication of this appeal, without remand to the RO for further consideration under the new law, poses no risk to the veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384, 394 (1993). See also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (to the same effect). Ratings Criteria Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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. Although 38 C.F.R. § 4.2 requires that the whole recorded history be reviewed to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board considers all other potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the veteran. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board must determine whether the weight of the evidence supports the veteran's claim or is in relative equipoise, with the veteran prevailing in either event. However, if the weight of the evidence is against his claim, the claim must be denied. 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The veteran's service-connected injury, intra-abdominal, affecting the liver, is rated under 38 C.F.R. § 4.114, which provides the schedule of ratings for the digestive system. The Board points out that ratings under Diagnostic Codes ("DC"s) 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 inclusive, will not be combined with each other. Instead, a single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. After consideration of all potentially applicable diagnostic codes, the Board finds that the veteran's symptoms are currently most appropriately evaluated under DC 7301, rating for adhesions, and finds no other codes applicable. In this regard, it is pointed Diagnostic Code 7311 provides that residuals of liver injuries are to be rated as adhesions of the peritoneum (i.e. under Diagnostic Code 7301). Since the time the veteran filed his claim for an increased evaluation for injury, intra-abdominal, affecting the liver, some regulations used to rate the digestive system were revised and became effective as of July 2, 2001. 66 Fed. Reg. 29488-29489 (May 31, 2001). The changes, however, did not involve rating the residuals of liver injuries or adhesions of the peritoneum. Id. That being said, it is noted that under DC 7301, a moderate disability, i.e., pulling pain on attempting work or aggravated by movements of the body, or occasional episodes of colic pain, nausea, constipation (perhaps alternating with diarrhea) or abdominal distension, warrants a 10 percent disability rating; a moderately severe disability, i.e., with partial obstruction of the small bowel manifested by delayed motility of barium meal and less frequent and less prolonged episodes of pain, warrants a 30 percent disability rating; a severe disability, i.e., with definite partial obstruction of the small bowel shown by X-ray, with frequent and prolonged episodes of severe colic distension, nausea or vomiting, following severe peritonitis, ruptured appendix, perforated ulcer, or operation with drainage, warrants a 50 percent disability rating. A note to this code provides that ratings for adhesions will be considered when there is a history of operative or other traumatic or infectious (intraabdominal) process, and at least two of the following: disturbance of motility, actual partial obstruction, reflex disturbances, presence of pain. In addition to the above criteria, weight loss is used to evaluate digestive system disorders. Weight loss is important where there is appreciable loss sustained over a period of time, as opposed to minor weight loss or a greater loss for a brief period of time. 38 C.F.R. § 4.112. The Board notes that the amendments to the regulations used to rate the digestive system, noted above, also included revision of 38 C.F.R. § 4.112 with respect to the definition of weight loss. However, as will be discussed below, weight loss is essentially has not been shown to be a manifestation of the veteran's injury, intra-abdominal, affecting the liver or, for that matter, any other disability. Consequently, the Board finds that it is unnecessary to undergo a comparison of the old and new criteria to determine which is more favorable to the veteran. Karnas v. Derwinski, 1 Vet. App. 308 (1991). 38 C.F.R. § 4.113 provides that there are diseases of the digestive system, particularly within the abdomen, which, while differing in the site of pathology, produce a common disability picture characterized in the main by varying degrees of abdominal distress or pain, anemia and disturbances in nutrition. Consequently, certain coexisting diseases in this area, as indicated in the instruction under the title "Diseases of the Digestive System," do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding as outlined in 38 C.F.R. § 4.14. The overall evidence shows complaints of continuous epigastric pain and burning controlled by Zantac on December 1995 VA examination, with a diagnosis of peptic ulcer disease; that the veteran reported nausea and vomiting as very rare during a January 1996 VA examination; and that despite complaints of heartburn, epigastric distress and bloating, appetite was reported as good. The abdomen was noted as soft and depressible with no hepatomegaly or ascites, and no significant weight loss or weakness, although there was gastroesophageal reflux. However, during his October 1996 hearing at the RO, the veteran testified to frequent nausea, vomiting, diarrhea, constipation, pain, obstruction on eating, and problems consuming certain foods. Recently, in September 2000, he reported no nausea, vomiting or constipation. Therefore, the Board cannot conclude that any claimed nausea or vomiting is of a severe nature, since such symptoms appear to occur inconsistently. No objective medical evidence of bowel obstruction is of record. January 1997 barium swallow and upper GI series found no obstruction, and mucosal and peristaltic activity were noted as normal; January 1998 CT scan of the abdomen was "otherwise unremarkable"; November 1998 sonogram of the abdomen noted no abnormalities. Although during the September 2000 VA examination, the veteran complained of epigastric pain, heartburn and fatigue, peristalsis was found to be normal, the abdomen soft and depressible, with no evidence of malnutrition, malabsorption, or weight changes. Notably, the most recent VA progress notes of February through August 2001 show bowel sounds present in all quadrants, with a non-tender, non-distended, soft and depressible abdomen, no masses or organomegaly, and the veteran was noted as well nourished and well developed. Thus, other than the veteran's statements, there is no objective medical evidence of bowel obstruction. As a lay person, although competent to describe symptoms, he is not competent to offer evidence which requires medical expertise, such as a diagnosis or a determination of etiology. See Espiritu v. Derwinski, 2 Vet. App. 492, at 494 (1992). The Board recognizes the veteran's complaints of continuous pain, and sympathizes with the difficulties of this disorder, but pain, standing alone, does not warrant a higher rating. Cf. Spurgeon v. Brown, 10 Vet. App. 194 (1997) (while the Board is required to consider the effect of the veteran's pain, the rating schedule does not provide a separate rating for pain). Additionally, the Board notes no patterns of weight loss. Weight appears to be in a stable range, from 185 in May 1994 to 189 pounds in 2001, suggesting no significant debilitation as a result of the service-connected abdominal disability, even considering manifestations of gastroesophageal reflux or peptic ulcer disease. Without evidence of partial obstruction and such symptoms as described in the VA regulations there is no showing that the overall disability picture more nearly approximates the criteria for a 30 percent rating, or greater, for the predominant disability, rated as adhesions of the peritoneum. 38 C.F.R. §§ 4.7, 4.114. In reaching this decision the Board has considered the issue of whether the veteran's disability presented an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards, such that referral to the appropriate officials for consideration of an extraschedular rating is warranted. See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-339 (1996). However, no evidence has been presented showing factors such as a marked interference with employment or frequent periods of hospitalization due to the service- connected disability, so as to render impractical the application of the regular schedular standards. Accordingly, the Board concludes that referral to the appropriate officials for consideration of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) is not warranted. In light of the above, the Board finds that the preponderance of the evidence is against a rating higher than 10 percent for the veteran's service-connected injury, intra-abdominal, affecting the liver. As the preponderance of the evidence is against the claim, the doctrine of reasonable doubt is not for application. 38 U.S.C.A. § 5107 (West Supp. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). ORDER An evaluation in excess of 10 percent for injury, intra abdominal, affecting the liver, is denied. J. A. MARKEY Member, 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.