Citation Nr: 0522267 Decision Date: 08/16/05 Archive Date: 08/25/05 DOCKET NO. 00-24 463A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for the residuals of chemical burns to the veins of the arms. 2. Entitlement to an initial evaluation in excess of 10 percent for irritable bowel syndrome. 3. Entitlement to an initial compensable evaluation for scars as the residuals of removal of multiple cysts. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The veteran served on active duty from February 1979 to February 1999. This case comes before the Board of Veterans' Appeals (Board) on appeal of January 2000, October 2001, and August 2002 decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. At the time of a hearing before the undersigned Acting Veterans Law Judge in December 2002, the veteran confirmed that he had withdrawn from appellate consideration the issues of service connection for the residuals of a tuberculosis (TB) test, hemorrhagic fever with renal syndrome, and a left knee disorder. The veteran additionally confirmed that he had withdrawn from consideration the issue of entitlement to an increased rating for low back strain. Accordingly, those issues are not currently before the Board. This case was previously before the Board in January 2004, at which time it was remanded for additional development. The case is now, once more, before the Board for appellate review. FINDINGS OF FACT 1. No current disability involving residuals of chemical burns to the veins of both arms has been shown. 2. The veteran's service-connected irritable bowel syndrome is currently productive of no more than moderate disability, with frequent episodes of bowel disturbance and abdominal distress. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.114 and Part 4, Diagnostic Code 7319 (2004). 3. The veteran's service-connected scars resulting from the removal of multiple cysts, none of which are greater than 3/4 by 1/4 inch in size, and which together involve less than 5 percent of the veteran's total body surface area, are superficial, and neither tender nor painful on objective demonstration, producing no limitation of function of the body part affected. CONCLUSIONS OF LAW 1. Chronic residuals of chemical burns to the veins of the veteran's arms were not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2004). 2. The criteria for an evaluation in excess of 10 percent for irritable bowel syndrome have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.114 and Part 4, Diagnostic Code 7319 (2004). 3. The criteria for a compensable evaluation for scars as the residuals of removal of multiple cysts have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.118 and Part 4, Diagnostic Codes 7802, 7803, 7804, 7805, 7806 (effective prior to and as of August 30, 2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) [codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)], redefined VA's duty to assist a veteran in the development of his claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2004). The notice requirements of the VCAA require VA to notify a veteran of any evidence that is necessary to substantiate his claims, as well as the evidence VA will attempt to obtain and what evidence he is responsible for providing. Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held, in part, that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant prior to the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In this case, the initial AOJ decision was made prior to November 9, 2000, the date the VCAA was enacted. Therefore, the AOJ could not have complied with the timing requirement, as the statute had not yet been enacted. In Pelegrini, the Court noted that, where the initial unfavorable decision was rendered prior to the enactment of the VCAA, the AOJ did not err in failing to comply with the timing requirements of the notice. However, the Court did note that, in such cases, the veteran would still be entitled to "VCAA content-complying notice" and the proper subsequent VA process. See Pelegrini, supra. In the present case, in correspondence of April 2001, and in subsequent correspondence of March and July 2004, the RO provided notice to the veteran regarding what information and evidence was needed to substantiate his claims, as well as what information and evidence should be submitted by him, what information and evidence would be obtained by the VA, and the need for him to advise VA of or submit any additional evidence that he wanted to have considered. The veteran and his representative were also provided with a Statement of the Case, and various Supplemental Statements of the Case. These documents provided them with notice of the law and governing regulations, as well as the reasons for the determinations made regarding the veteran's claims, and the requirement to submit evidence establishing entitlement to the benefits at issue. By way of these documents, the veteran and his representative were also specifically informed of the cumulative evidence previously provided to the VA, or obtained by the VA on the veteran's behalf. In point of fact, all of the aforementioned correspondence informed the veteran of the evidence that he was responsible for submitting, and what evidence the VA would obtain in order to substantiate his claims. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). All the VCAA requires is that the duty to notify is satisfied, and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). In accordance with Pelegrini, supra., the Board is of the opinion that the RO did not error with respect to the timing of the VCAA notice requirement, as the VCAA had not been enacted at the time of the decision on appeal. Moreover, the notice provided to the veteran in April 2001, and in March and July 2004 was provided by the AOJ prior to the transfer of the veteran's case to the Board following remand, and the content of the notice fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). After the notice was provided, the case was readjudicated, and a Supplemental Statement of the Case was provided to the veteran. In the case at hand, the claimant has been provided every opportunity to submit evidence and argument in support of his claims, and to respond to VA notices. Accordingly, to decide the appeal would not be prejudicial to the claimant. Factual Background A service clinical record dated in late May 1996 reveals that the veteran was seen at that time for follow up of a Hantavirus infection. Noted at the time was that the veteran suffered from a thrombosed right forearm vein, which, it was felt, was secondary to an intravenous line. This problem was discussed with vascular surgery service, which indicated that there was no need to remove the vein if no problem occurred. In a service clinical record of February 1998, the veteran stated that he had been given Ribavirin, in addition to high dose magnesium during his Hantavirus infection. Reportedly, since that time, the veteran had experienced pain in his veins where the IV's had been inserted in his right and left arms. In the opinion of the veteran, this was the cause of some of his paresthesia. A service separation examination conducted in October 1998 was negative for evidence of chemical burns to the veins of the veteran's arms, or residuals thereof. At the time of Medical Board proceedings in October 1998, it was noted that a physical examination was negative for any evidence of inflammation or effusion. During the course of private outpatient treatment in December 1999, it was noted that the veteran had received a diagnosis of irritable bowel syndrome with chronic diarrhea. Also noted was that there was "mostly no history" of constipation. On physical examination, the veteran's abdomen was soft, with no evidence of organomegaly or tenderness, but with some slightly increased intestinal sounds. The clinical assessment was chronic diarrhea, irritable bowel syndrome. Treatment was with medication. During the course of a hearing before the undersigned Acting Veterans Law Judge in December 2002, the veteran offered testimony regarding the nature and etiology of his claimed chemical burns to the veins of the arms, as well as the current severity of his service-connected irritable bowel syndrome and scars. On VA dermatologic examination in July 2004, the veteran stated that, during the period from 1987 to 1989, he noticed a spot on his right lateral thigh which began as a round area similar to a mosquito bite. According to the veteran, this spot remained the same for a while, though his uniform tended to irritate it. The veteran subsequently saw a surgeon, who excised the offending growth. The veteran described the area in question as soft, firm, and about the size of a thumbnail. A secondary area of abnormality was in the veteran's right kneecap, underneath the skin. This consisted of a hard area "about the size of a BB ball." According to the veteran, this was present for several months. However, the veteran was subsequently evaluated, and had the lesion excised. Another area noted was in the vicinity of the veteran's left flank at the beltline. According to the veteran, this lesion developed quickly, in about 1 to 2 days. It then became irritated, with the result that the veteran had it removed via surgical excision. Reportedly, in late 2001 or early 2002, the veteran noticed a growth in his lower shin area. This was during the veteran's post military period, when he had been wearing boots. When questioned, the veteran described the growth as a "similar hard and BB-like type nodule." This was removed by a private physician at Tri- Care. A fifth area arising during the veteran's post military period in 2003 was on the tip of the index finger of his left hand. This consisted of a hard, small area about the size of a BB ball. Because this interfered with the veteran's grip and irritated his finger, it was also excised by a private physician. When further questioned, the veteran stated that, in 1998, while in service, he underwent the surgical excision of 4 to 5 small, hard, BB-like growths in the scrotal area. According to the veteran, the surgeon who performed the surgery informed him that the nodules in question were benign calcified cysts. On physical examination, there was a 3/8-inch-long horizontal scar with central hypopigmentation on the veteran's left lower back. On the right lateral thigh was a circular lesion which was three-quarters of an inch long and one-quarter of an inch wide with central atrophy. This scar was hypopigmented, though nontender. On the veteran's right kneecap, there was a scar lateral to the top which was nontender. The scar was circular, and measured one-eighth by one-eighth inch, with a central depression almost like a dimple. In the left waistline area was a cylindrical scar three-quarters of an inch long and of negligible width. This scar was hypopigmented with evidence of atrophy, but nontender. On the left index finger at the tip was a questionable faint circular scar of negligible size. Further examination revealed no evidence of any residual scar on the veteran's left shin or in the scrotal area. Noted at the time of examination was that unretouched color photographs had been taken, and were reviewed. The pertinent diagnosis was multiple superficial scars as the residuals of cyst removal, with no evidence of adherence to underlying tissue, and no disfigurement, involving less than 5 percent of the veteran's total body surface area, and characterized by no tenderness to palpation. In the opinion of the examiner, it was less likely than not that the "cysts" which had developed during the veteran's post military period were related to his service-connected cysts. On VA vascular examination in August 2004, it was noted that the veteran's claims folder was available, and had been reviewed. According to the veteran, while on duty in Bosnia, he had become ill, and received an IV antiviral drug. Later, the veteran was reportedly told that he had developed blood clots in the veins of both of his forearms. On physical examination, the arterial system in both arms was normal from the axilla to the wrist. The veteran exhibited visible veins which emptied normally with elevation. At the time of examination, the examiner was unable to detect cord- like structures representing previous episodes of thrombophlebitis. However, this did not rule out the possibility that, at some point in the past, the veteran could have had thrombophlebitis which completely resolved without leaving fibrosed scarred veins. According to the examining physician, he spent considerable time explaining to the veteran the difference between arteries and veins, and in particular, that clots in arteries were very serious, whereas clots in superficial veins in the arm secondary to IV medication normally resolved without any residual effect or disability. Based on a detailed review of the veteran's records and a comprehensive clinical evaluation, the examiner was of the opinion that the veteran did not exhibit any residual effect from previous episodes of thrombophlebitis which might have occurred during past IV administration of medicinal drugs. On VA gastrointestinal examination in September 2004, the veteran gave a history of hemorrhagic fever in 1996 (while in service), following which he began to have problems with bowel movements. According to the veteran, within two hours of rising from bed nearly every morning, he experienced a strong sense of fecal urgency. This might or might not be associated with mild lower abdominal cramping. However, within minutes, it became necessary for the veteran to find a restroom or suffer incontinence. According to the veteran, he had experienced incontinence three weeks earlier at a local home improvement center. When questioned, the veteran described his stools as "loose to watery." While the consistency of stool could be well controlled with a single over-the-counter dose of Imodium, the veteran still experienced urgency with the subsequently formed stool. When further questioned, the veteran denied hematochezia, melena, abdominal pain, nausea, vomiting, or dietary restriction. Noted at the time of evaluation was that the veteran's gastrointestinal history was significant for a Hantavirus infection in 1996 manifested by hemorrhagic fever renal syndrome, thrombocytopenia, severe abdominal pain, and protracted diarrhea. Apparently, the veteran's renal symptoms resolved with Ribavirin, though morning urgency persisted to the present. Reportedly, in 1998, stool studies had been negative. Colonic mucosa sampled on sigmoidoscopy reportedly showed the presence of lymphocytes and congestion, both of which were nonspecific findings, showing no evidence of colitis. The veteran's claims folder was reviewed, and showed no evidence of any active problems. When questioned, the veteran denied any problems with weight loss. Physical examination revealed an obese white male in no acute distress. The veteran's abdomen was soft, nontender, and nondistended, with good bowel sounds. The clinical impression was fecal urgency, likely functional, generally well controlled with Imodium. Noted at the time of examination was that there was no evidence of colitis on recent colonoscopy. Nor did the veteran have true diarrhea. In the opinion of the examiner, the veteran's symptoms were not consistent with celiac disease. Rather, it was quite possible that he was suffering from post infectious irritable bowel syndrome as a result of the infection he contracted while in the military. Analysis The veteran in this case seeks service connection for the residuals of chemical burns to the veins of both of his arms. In that regard, it is argued that, during the course of treatment for Hantavirus in service, the veteran was administered intravenous medication in both arms, resulting in the alleged "chemical burns." Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2004). In the present case, service medical records are negative for evidence of chemical burns to the veins of the veteran's arms, or residuals thereof. While in May 1996, during the veteran's period of active military service, there was noted the presence of a thrombosed right forearm, apparently the result of intravenous medication, that episode was acute and transitory in nature, and resolved without disability. Significantly, at the time of that incident, no treatment was recommended for the thrombosis in question. Nor is there any indication that, at any time subsequent to that incident, the veteran experienced "chemical burns" to the veins of his arms. As of the time of a service separation examination in October 1998, there was no evidence of said "chemical burns," or any residuals thereof. Moreover, at the time of Medical Board proceedings in October 1998, physical examination revealed no evidence of any inflammation or effusion in the veteran's extremities. The Board observes that, at the time of a VA arterial examination in August 2004, the arterial system in both of the veteran's arms was normal from the axilla to the wrist. Further examination revealed visible veins which emptied normally on elevation. Noted at the time of examination was that the examiner was unable to detect any cord-like structures representing previous episodes of thrombophlebitis. Based on a detailed review of the veteran's records and comprehensive clinical examination, it was concluded that the veteran did not, in fact, have any residual effects from an episode of thrombophlebitis resulting from the IV administration of medicinal drugs in service. The Board has taken into consideration the veteran's contentions regarding the nature and etiology of his claimed "chemical burns" to the veins of both arms. However, absent evidence of chronic pathology, either in service, or thereafter, the veteran's claim for service connection for that disability must be denied. Regarding the issues of increased evaluations for service- connected irritable bowel syndrome and scars as the residuals of removal of multiple cysts, the Board notes that disability evaluations, in general, are intended to compensate for the average impairment of earning capacity resulting from a service-connected disability. They are primarily determined by comparing objective clinical findings with the criteria set forth in the rating schedule. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2004). Where there is a question as to which of two evaluations apply, the higher evaluation will be assigned where the disability picture more nearly approximates the criteria for the next higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2004). While the Board must consider the veteran's medical history as required by various provisions of 38 C.F.R. Part 4, including Section 4.2 [see Schafrath v. Derwinski, 1 Vet. App. 589 (1991)], the regulations do not give past medical reports precedence over current findings. In a rating decision of January 2000, the RO granted service connection (and an initial 10 percent evaluation) for irritable bowel syndrome, effective from March 1, 1999, the date following the veteran's discharge from service. That same rating decision granted a noncompensable evaluation for scars as the residuals of removal of multiple cysts, once again, effective from March 1, 1999. In Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. In Fenderson, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal. In the present case, a review of the record discloses that, at the time of private outpatient treatment in December 1999, the veteran's abdomen was soft, with no organomegaly or tenderness, and only slightly increased intestinal sounds. Significantly, while following extensive work up, the veteran had received a diagnosis of irritable bowel syndrome with chronic diarrhea, there was almost no history of constipation. On physical examination, the veteran's abdomen was soft, with no sign of organomegaly or tenderness, and only slightly increased intestinal sounds. On subsequent VA gastrointestinal examination in September 2004, the veteran gave a history of early morning fecal urgency, which might or might not be associated with mild lower abdominal cramping. Physical examination revealed no evidence of any weight loss, and the veteran's abdomen was soft and nontender. Bowel sounds were described as "good," and there was no sign of abdominal distention. In the opinion of the examiner, the veteran's fecal urgency was most likely "functional," and generally well controlled with Imodium. There was no evidence of colitis on colonoscopy, nor did the veteran exhibit what could be considered "true diarrhea." The 10 percent evaluation currently in effect contemplates the presence of moderate irritable bowel syndrome, characterized by frequent episodes of bowel disturbance and abdominal distress. In order to warrant an increased, which is to say, 30 percent evaluation, there must be demonstrated the presence of severe irritable bowel syndrome, with diarrhea or alternating diarrhea and constipation, and more or less constant abdominal distress. 38 C.F.R. § 4.114 and Part 4, Code 7319 (2004). Based on a review of the entire evidence of record, it is clear that the veteran does not currently meet the schedular criteria for an increased evaluation. While it is true that, as a result of the veteran's service-connected irritable bowel syndrome, he suffers from episodes of diarrhea, those episodes are apparently well controlled with over-the-counter medication. Moreover, based on the evidence of record, it would appear that the veteran has little or no problem with constipation. Under the circumstances, the 10 percent evaluation currently in effect is appropriate, and an increased rating is not warranted. Turning to the issue of an increased evaluation for service- connected scars as the residuals of the removal of multiple cysts, the Board notes that, effective August 30, 2002, the schedular criteria for the evaluation of service-connected skin disorders underwent revision. In a precedent opinion of the VA Office of the General Counsel, it was held that, when a provision of the Rating Schedule is amended while a claim for an increased rating under that provision is pending, the Board must determine whether the intervening change is more favorable to the veteran, and, if the amendment is more favorable, apply that provision to rate the disability for periods from and after the effective date of the regulatory change. In addition, the Board must apply the prior regulation to rate the veteran's disability for periods preceding the effective date of the regulatory change. VAOPGCPREC 3-2000 (April 10, 2000). Pursuant to those laws and regulations in effect prior to August 30, 2002, a 10 percent evaluation for service- connected scars is warranted where there is evidence of superficial or poorly nourished scars, with repeated ulceration. A 10 percent evaluation is, likewise, indicated where there is evidence of superficial scars which are tender and/or painful on objective demonstration. Finally, an increased evaluation is in order where there is evidence of some limitation of function of the body part affected by scarring. 38 C.F.R. § 4.118 and Part 4, Codes 7803, 7804, 7805 (2004). Under the current schedular criteria in effect for the evaluation of service-connected skin disorders, a 10 percent evaluation is warranted where there is evidence of deep scars which cause limited motion, covering an area exceeding 6- square inches. A 10 percent evaluation is, likewise warranted where there is evidence of superficial scarring which does not cause limited motion, where such scars cover an area or areas of 144 square inches or greater. A 10 percent evaluation is also indicated where there is evidence of unstable superficial scarring, or superficial scars which are painful on examination. Scars which are productive of some limitation of function of the affected body part are, likewise, considered potentially compensable. Finally, by analogy to dermatitis or eczema, a 10 percent evaluation is indicated where the skin disorder in question covers at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent of exposed areas. 38 C.F.R. § 4.118 and Part 4, Codes 7801, 7802, 7803, 7804, 7805, 7806 (2004). Based on the aforementioned, it is clear that the veteran exhibits some scarring as the residual of the removal of multiple cysts. However, it is similarly clear that the veteran's service-connected scarring is no more than noncompensably disabling. At present, there is no indication that the veteran's scars are tender and/or painful, or productive of any limitation of function of the body part affected. Nor is there any evidence that the veteran's service-connected scars are unstable, and either tender or painful on objective examination. Significantly, as of the time of a VA dermatologic examination in July 2004, the veteran's scars were described as superficial and nondisfiguring, involving less than 5 percent of the veteran's total body surface area. The Board has taken into consideration the veteran's testimony regarding the current severity of his service- connected scars. However, based upon a review of the entire evidence of record, the Board is of the opinion that the noncompensable evaluation currently in effect is appropriate, and that an increased rating is not warranted. ORDER Service connection for the residuals of chemical burns to the veins of the veteran's arms is denied. An initial evaluation in excess of 10 percent for irritable bowel syndrome is denied. An initial compensable evaluation for scars as the residuals of removal of multiple cysts is denied. ____________________________________________ HEATHER J. HARTER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs