Citation Nr: 0811801 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 04-34 370 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for headaches. 2. Entitlement to service connection for memory loss. 3. Entitlement to an increased rating for status post exploratory laparotomy with incision of infected urachal sinus and 3-layer bladder closure, currently evaluated as 40 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher Murray, Associate Counsel INTRODUCTION The veteran had active military service from June 1993 to June 1996. This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In March 2008, a hearing was held before the undersigned at the RO. FINDINGS OF FACT 1. Headaches were not manifested during the veteran's active duty service, and there is no etiological relationship between the veteran's current headaches and his active service. 2. Memory loss was not manifested during the veteran's active duty service, and there is no etiological relationship between the veteran's current memory loss and his active service. 3. The veteran's service-connected status post exploratory laparotomy with incision of infected urachal sinus and 3- layer bladder closure is currently manifested by no more than urinary incontinence requiring the wearing of absorbent materials which must be changed more than four times per day. CONCLUSIONS OF LAW 1. Headaches were not incurred in active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 2. Memory loss was not incurred in active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 3. The criteria for an evaluation of 60 percent, but not greater, for status post exploratory laparotomy with incision of infected urachal sinus and 3-layer bladder closure have been met. 38 U.S.C. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.2, 4.3, 4.7, 4.115a, 4.115b, Diagnostic Code 7516 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must (1) notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, (2) which information and evidence VA will obtain, (3) and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002). (4) VA must also request that the claimant provide any evidence in the claimant's possession that pertains to a claim. 38 C.F.R. § 3.159 (2007). See also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Regarding VCAA notice elements two through four, the Board finds that February 2003 and October 2003 notice letters fully satisfied these duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In this regard, these notice letters requested that the veteran provide enough information for the RO to request records from any sources of information and evidence identified by the veteran. He was also expressly advised of the need to submit any evidence in his possession that pertains to the claim decided herein. Finally, these letters advised the veteran what information and evidence would be obtained by VA, namely, records like medical records, employment records, and records from other Federal agencies. During the pendency of this appeal, the Court of Appeals for Veterans Claims (Court) issued a decision in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), which held that, for an increased compensation claim, section 5103(a) requires first element notice which, at a minimum, notifies the claimant that he must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on his employment and daily life. Further, if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. The notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation - e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores at 41. In this case, the veteran was provided pertinent information in the October 2003 VCAA notice letter. Specifically, the October 2003 letter informed the veteran of the need to provide on his own, or by VA, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the veteran's employment. In addition, the October 2003 letter provided the veteran with examples of pertinent medical and lay evidence that he may submit (or ask the Secretary to obtain) relevant to establishing entitlement to increased compensation. The Board acknowledges that the October 2003 letter did not make reference to specific diagnostic codes or applicable criteria necessary to warrant an increased rating which might not be evident from demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening on his employment and daily life. However, the veteran was provided notice of applicable rating criteria in the June and September 2004 statements of the case and January and July 2007 supplemental statements of the case. The Board also acknowledges the October 2003 letter did not specifically inform the veteran that he must provide evidence demonstrating the effect any worsening of his service- connected disability has on his daily life. However, the Board concludes that the veteran demonstrated actual knowledge of the need to submit evidence regarding the impact of his disability on his daily life in a March 2006 statement (veteran stated that "[m]y medical condition not only complicates my personal life but my ability to live a happy, healthy normal life for a person my age.") Under these circumstances, the Board finds that any VCAA notice error with respect to this provision of first element notice is non-prejudicial to the veteran, and that the Board may proceed with its decision. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007) (all VCAA notice errors are presumed prejudicial and require reversal unless the VA can show that the error did not affect the essential fairness of the adjudication, such as by demonstrating that any defect was cured by actual knowledge on the part of the claimant, that a reasonable person could be expected to understand from the notice what was needed, that a benefit could not have been awarded as a matter of law, or perhaps where the claimant has stated that he or she has no further evidence to submit, or where the record reflects that VA has obtained all relevant evidence). The Board notes that the October 2003 letter was sent subsequent to the initial unfavorable agency decision in April 2003. However, the Board finds that any timing defect with regard to VCAA notice was harmless error. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 20 Vet. App. 537 (2006). In this regard, the notice provided to the veteran by this letter fully complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), and, after the notice was provided, the case was readjudicated and June and September 2004 statements of the case were issued. See Mayfield v. Nicholson, 19 Vet. App. 103, 121 (2005); rev'd on other grounds, Mayfield v. Nicholson, 444 F. 3d 1328 (Fed. Cir. 2006) (a statement of the case that complies with all applicable due process and notification requirements constitutes a readjudication decision). In Vazquez-Flores, supra, the Court stated that "[n]othing in law or common sense supports a conclusion that the Court should put on blinders and ignore [the 'extensive administrative appellate process'] or a conclusion that a notice error prior to the initial decision by the Secretary could not be rendered non-prejudicial when the full panoply of administrative appellate procedures established by Congress are provided to the claimant. It is well settled that a remand is not warranted when no benefit would flow to the claimant." Id. See also Bernard v. Brown, 4 Vet. App. 384, 394 (1993); 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). As a final matter, the Board notes that the veteran was not provided notice regarding the evidence and information necessary to establish a disability rating and effective date in accordance with Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). However, the Board has concluded that the preponderance of the evidence is against the veteran's service connection claims. Therefore, any questions as to the appropriate disability rating or effective date to be assigned have been rendered moot, and the absence of notice regarding these elements should not prevent a Board decision. In light of the above, the Board finds that nearly all notice required by VCAA and implementing regulations were furnished to the veteran. For those elements of notice that the veteran was not specifically informed, the Board has demonstrated that any defective predecisional notice error is non-prejudicial in terms of the essential fairness of the adjudication. and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2007). Service medical records are associated with claims file. Post-service treatment records and reports from the VA Medical Center (VAMC) are also included. The veteran has supplied records from Dr. McGuire of Springfield, Massachusetts, and Dr. Mani of Holyoke, Massachusetts. The veteran was afforded VA examinations for his headaches, memory loss and status post laparotomy in February 2004. See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159 (c)(4) (2007); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Analysis Under 38 U.S.C. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. In Timberlake v. Gober, 14 Vet. App. 122 (2000), the Court held, in pertinent part, that the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. The Federal Circuit has also held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2007). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). The veteran maintains that his currently diagnosed chronic headaches and memory loss are the direct result of his active service. Specifically, he asserts that these conditions are the result of exposure to jet fuel. While the evidence reveals that the veteran currently suffers from chronic headaches and memory loss, the competent, probative evidence of record does not etiologically link the veteran's current disabilities to his service or any incident therein. Service medical records include no complaints of or treatment for chronic headaches or memory loss. An April 1996 Report of Medical Examination indicates no abnormal neurologic condition. In addition, the Report of Medical History, completed and signed by the veteran for his separation physical, specifically indicates the veteran did not suffer from loss of memory or amnesia and provides no mention of chronic headaches. The veteran was afforded a VA examination in February 2004, during which the examiner noted both a history of chronic headaches and memory loss. After reviewing the veteran's service medical records and claims folder, the VA examiner opined that the veteran's chronic headaches and memory loss are not due to exposure to jet fuel or any other event in service. The VA examiner stated that "it is not as likely as not that headaches due to past fuel exposures would have a new onset years after exposure but rather at the time of exposure." In addition, the examiner noted that "in both cases [of headaches and memory loss], there is no evidence that exposure to these fuels would cause new onset of symptoms as above years later. Service connection is doubtful." The Board notes that the veteran has submitted a newspaper article he asserts supports his claim for service connection. Specifically, this article notes an apparent link between exposure to JP-8 jet fuel and suppressed immune systems and respiratory and nervous system disorders. In addition, the article refers to research being performed by the Air Force to determine the effects of exposure to JP-8 jet fuel. While Board acknowledges the submitted article addresses the subject matter asserted in the veteran's claim, the Board finds that it is not probative evidence upon which service connection may be granted. In this regard, the Board observes that the article submitted by the veteran does not rely upon a specific study or address scientific facts. In addition, the veteran has not alleged that he participated in the research study cited in the article. Finally, as noted above, the veteran was provided a VA examination in February 2004. The VA examiner specifically reviewed the veteran's medical history and also relevant medical literature in reaching the conclusion that the veteran's chronic headaches and memory loss is not caused by past exposure to jet fuel. As such, the Board finds the February 2004 VA examination report to be of more probative weight than the newspaper article submitted by the veteran. In sum, the Board finds that there is no evidence of chronic headaches or memory loss during service. The threshold question therefore is whether there is sufficient medical evidence to establish an etiological link between the veteran's current headaches and memory loss and his active service. The preponderance of the evidence is against this aspect of the veteran's claim. The veteran has produced no competent medical evidence or competent medical opinion in support of his claim that his present chronic headaches and memory loss are the result of in-service exposure to jet fuel, and the unfavorable February 2004 VA examination opinion weighs against granting the veteran's claim. Finally, the Board acknowledges that the veteran himself has claimed his current chronic headaches and memory loss arise from his in-service exposure to jet fuel. However, the Board notes that as a layman, the veteran has no competence to give a medical opinion on the diagnosis or etiology of a condition. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Consequently, lay assertions of medical diagnosis or etiology cannot constitute evidence upon which to grant the claim for service connection. Lathan v. Brown, 7 Vet. App. 359, 365 (1995). Increased Rating Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as in the present case, entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007). The veteran's service-connected right status post exploratory laparotomy has been evaluated as 40 percent disabling under the provisions of 38 C.F.R. § 4.115b, Diagnostic Code 7599- 7516. Diagnostic Code 7599 represents an unlisted disability requiring rating by analogy to one of the disorders listed under 38 C.F.R. § 4.115b. See 38 C.F.R. §§ 4.20, 4.27 (2007). Pertinent regulations do not require that all cases show all the findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2007). In the present case, the veteran's status post exploratory laparotomy has been rated as analogous to fistula of the bladder. Diseases of the genitourinary system generally result in disabilities related to renal or voiding dysfunctions, infections, or a combination of these. Where diagnostic codes refer the decision maker to these specific areas of dysfunction, only the predominant area of dysfunction shall be considered for rating purposes. Since the areas of dysfunction described below do not cover all symptoms resulting from genitourinary diseases, specific diagnoses may include a description of symptoms assigned to that diagnosis. 38 C.F.R. § 4.115a. Under Diagnostic Code 7516, the veteran's disability is rated as a voiding dysfunction or urinary tract infection, whichever is predominant. Postoperative, suprapubic cystotomy is assigned a 100 percent evaluation. For a voiding dysfunction, rate particular condition as urine leakage, frequency, or obstructed voiding. Continual urine leakage, post surgical urinary diversion, urinary incontinence, or stress incontinence: A 60 percent evaluation may be assigned when the use of an appliance or the wearing of absorbent materials that must be changed more than 4 times per day is required. Requiring the wearing of absorbent materials that must be changed 2 to 4 times per day warrants a 40 percent evaluation. 38 C.F.R. § 4.115a. The Board notes that the maximum evaluation for urinary tract infection is 30 percent. As the veteran's condition is currently evaluated as 40 percent disabling, the Board will not further address ratings as they pertain to urinary tract infections. After a careful review of the record, the Board finds that the evidence of record supports an evaluation of 60 percent, but no greater, for service-connected status post exploratory laparotomy. In this regard, VA treatment records indicate the veteran uses three to four undergarments daily "on a good day." In addition, at a March 2008 hearing, the veteran testified that he must change his undergarments five times daily on average and as many as six or seven on some days. In consideration of the medical evidence of record, as well as the veteran's credible testimony, the Board finds that the veteran's disorder more closely approximates the symptoms contemplated by a 60 percent evaluation. See 38 C.F.R. § 4.7. The Board has also considered whether the evidence of record supports a 100 percent evaluation for the veteran's disorder. However, the evidence of record does not support such an evaluation. In this regard, the Board notes that there is no evidence of postoperative suprapubic cystotomy, required for the assignment of a 100 percent evaluation. Finally, the Board has considered the potential application of various provisions of Title 38 of the Code of Federal Regulations, but the record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1) (2007). In this regard, the Board finds that there has been no showing by the veteran that his service-connected status post exploratory laparotomy has resulted in marked interference with employment so as to render impractical the application of the regular rating schedule standards or necessitated frequent periods of hospitalization. In fact, the veteran stated at the March 2008 hearing that this condition "just...inconveniences my lifestyle.". As such, the Board finds that criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1996). ORDER Service connection for chronic headaches is denied. Service connection for chronic memory loss is denied. An evaluation of 60 percent, but not greater, for status post exploratory laparotomy with incision of infected urachal sinus and 3 layer bladder closure is granted, subject to laws and regulations governing the payment of monetary benefits. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs