Citation Nr: 1007343 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 05-03 256 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a disability rating in excess of 30 percent for splenomegaly. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD Clifford R. Olson, Counsel INTRODUCTION The Veteran had active service from January 1967 to October 1967. This matter comes before the Board of Veterans' Appeals (Board) from decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. When the case was previously before the Board in September 2008, the Board found that the Veteran did not have a blood disorder and denied service connection for a blood disorder and secondary conditions. The claim for an increased rating for splenomegaly was remanded for examination of the Veteran. The requested development has been completed and the Board now proceeds with its review of the appeal. FINDINGS OF FACT 1. The service-connected splenomegaly is manifested by history without objective manifestations. 2. The service-connected splenomegaly does not have manifestations analogous to a history of ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy (erosive gastritis), generalized weakness, substantial weight loss, or persistent jaundice. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for splenomegaly have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.7, 4.20, 4.114, 4.117 and Codes 7706, 7707, 7312, 7345 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Duty to Notify In a letter dated in October 2003 the RO provided the Veteran with an explanation of the type of evidence necessary to substantiate his claim, as well as an explanation of what evidence was to be provided by him and what evidence the VA would attempt to obtain on his behalf. The initial notice letter was provided before the adjudication of his claim in February 2004. Letters dated in May 2007 and October 2008 up dated the initial VCAA notice and also provided notice regarding potential ratings and effective dates. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board notes a series of claims and adjudications. In January 2002, the RO denied a rating in excess of 30 percent for splenomegaly. Within a year, in August 2002, the Veteran asked that the claim be reopened. In October 2002, the RO denied an increased rating. Within a year, in November 2002, the Veteran responded asking that his claim be reopened. In January 2003, the RO denied an increased rating. Within a year, in September 2003, the Veteran requested that his claim be reopened. Even if these requests to reopen were viewed as timely notices of disagreement, the appellant was subsequently afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond. This cured any notice defects before the agency of original jurisdiction (AOJ) last readjudicated the case by way of a supplemental statement of the case issued in December 2009. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). VA has complied with the notice requirements of VCAA and there is no outstanding duty to inform the appellant that any additional information or evidence is needed. Therefore, the Board may decide the appeal without a remand for further notification. Duty to Assist The Board also finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained. The Veteran's service medical records have been obtained. His available post-service treatment records have also been obtained. The Veteran has had a VA examination and a medical opinion has been obtained. Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Criteria Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). See also 38 C.F.R. §§ 4.1, 4.2 (2009). The Board has considered all the evidence of record. Specifically, we have gone back at least a year before the date the claim was received. See 38 C.F.R. §§ 3.157, 3.400(o) (2009). However, the most probative evidence of the degree of impairment consists of records generated in proximity to and since the claim on appeal. See Francisco v. Brown, 7 Vet. App. 55 (1994). A splenectomy will be rated as 20 percent disabling with complications such as systemic infections with encapsulated bacteria rated separately. 38 C.F.R. § 4.117, Code 7706 (2009). A healed injury of the spleen will be rated for any residuals. 38 C.F.R. § 4.117, Code 7707 (2009). There are no specific rating criteria for splenomegaly. When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20 (2009). The Veteran's splenomegaly is currently rated by analogy to diagnostic code 7312, cirrhosis of the liver. Cirrhosis of the liver, primary biliary cirrhosis, or cirrhotic phase of sclerosing cholangitis will be rated as follows: Generalized weakness, substantial weight loss, and persistent jaundice, or; with one of the following refractory to treatment: ascites, hepatic encephalopathy, hemorrhage from varices or portal gastropathy (erosive gastritis)- 100 percent; History of two or more episodes of ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy (erosive gastritis), but with periods of remission between attacks- 70 percent; History of one episode of ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy (erosive gastritis)- 50 percent; Portal hypertension and splenomegaly, with weakness, anorexia, abdominal pain, malaise, and at least minor weight loss- 30 percent; Symptoms such as weakness, anorexia, abdominal pain, and malaise-10 percent. Note: For evaluation under diagnostic code 7312, documentation of cirrhosis (by biopsy or imaging) and abnormal liver function tests must be present. 38 C.F.R. § 4.114, Code 7312 (2009). Discussion One of the reasons for reviewing the history of the disability is to insure that it is being rated under the proper diagnostic code. Review of the service treatment records shows that the Veteran was unable to finish basic training due to his medical complaints. After arriving, he experienced episodes of nausea and vomiting. He also had a cough with greenish sputum and occasional blood. He had occasional diarrhea, which worsened prior to being hospitalized. Frequent mid-abdominal cramping was reported. It was sometimes accompanied by vomiting or diarrhea. He sustained a weight loss from 170 to 148 pounds. There were also back complaints but orthopedic evaluation showed no abnormality. On physical examination, the Veteran did not look acutely or chronically ill. Most examination findings were within normal limits. The abdomen had normal bowel sounds. There was tenderness in the right lower quadrant upon palpation of the sigmoid colon and in the left upper quadrant. There was dullness 2 fingers below the right costal margin, but a definite liver edge could not be palpated. The spleen however was easily palpable 11/2 centimeters below the left costal margin on deep inspiration. A barium enema study disclosed a mildly enlarged spleen. During his hospitalization, the Veteran gained 10 pounds. There was no regression of the spleen. After further consultations, the diagnoses were splenomegaly, etiology unknown, and passive dependent personality, passive aggressive type, manifested by anorexia, vomiting, weight loss and inability to tolerate separation from home. It is significant that the military physicians ascribed the gastrointestinal symptoms to the personality disorder and not to the splenomegaly. If fact, the service treatment records do not link any symptoms to the spleen enlargement. Following service, in November 1967, the Veteran was seen at a private hospital because of pain in the left upper quadrant associated with nausea and vomiting. He claimed he had been previously hospitalized and told he had an enlarged spleen. He reported pain off and on since his discharge from the service. Examination of his abdomen showed it to be soft and flat. There was tenderness in the left upper quadrant. The spleen was palpable about one finger breadth below the costal margin. The liver and kidney were not palpable. The diagnosis was chronic splenomegaly. A December 1967 rating decision reviewed the service treatment records and post service records and granted service connection for splenomegaly. It assigned a 30 percent rating by analogy to diagnostic code 7312. It did not identify the manifestations supporting the assigned rating. Subsequent records reflect various claims over the years. There are extensive medical records for injuries and illnesses in the 1990's without any medical report of splenomegaly symptoms. The Veteran also reports that he has been going to a VA medical center since 1998. The medical center records have been obtained and again focus on other problems without identifying any current symptoms of splenomegaly. The Veteran had a VA examination in December 2002. He complained of increased generalized fatigue and tenderness in the abdomen. He was 5 foot 11 inches tall and weighed 200 pounds. He weight was unchanged. He stated that he had general fatigue at all times. He appeared very fatigued during the examination. He stated that he had difficulty sleeping and usually got to bed about 3 AM but did not get up until 10 AM or noon the next day. He usually took daily naps. He admitted that he really had no physical activity. His abdomen was slightly enlarged. There were no ascites. There was tenderness throughout the abdomen. He denied vomiting or alteration of his stools. He was noted to have a long standing condition of an enlarged spleen. The diagnosis was splenomegaly with fatigue. The Veteran had another VA examination in September 2009. He still complained of generalized fatigue, which appeared essentially unchanged. The Veteran had trouble sleeping and was up at night for nocturia. He usually took at least one nap during the day. He complained of increased abdominal size due to spleen enlargement. He also complained of recurring headaches. Examination showed his weight was essentially unchanged at 206 pounds. His abdomen was slight tender. Bowel sounds were active. Laboratory studies had results within normal limits. An ultrasound study of the spleen showed it was within normal limits. The diagnosis was that the Veteran was already service-connected for splenomegaly. Conclusion The Veteran has not claimed any symptoms other than fatigue due to the splenomegaly. The symptoms described by the Veteran do not approximate any applicable criteria for a higher rating under diagnostic code 7312. Specifically, there are no ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy (erosive gastritis), generalized weakness, substantial weight loss, or persistent jaundice. Actually, the fatigue described by the Veteran seems more appropriately rated by analogy to chronic liver disease without cirrhosis. These criteria specifically include fatigue. Chronic liver disease without cirrhosis (including hepatitis B, chronic active hepatitis, autoimmune hepatitis, hemochromatosis, drug-induced hepatitis, etc., but excluding bile duct disorders and hepatitis C) will be rated as follows: Near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain)- 100 percent; Daily fatigue, malaise, and anorexia, with substantial weight loss (or other indication of malnutrition), and hepatomegaly, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least six weeks during the past 12-month period, but not occurring constantly- 60 percent; Daily fatigue, malaise, and anorexia, with minor weight loss and hepatomegaly, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least four weeks, but less than six weeks, during the past 12-month period- 40 percent; Daily fatigue, malaise, and anorexia (without weight loss or hepatomegaly), requiring dietary restriction or continuous medication, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least two weeks, but less than four weeks, during the past 12- month period- 20 percent; Intermittent fatigue, malaise, and anorexia, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least one week, but less than two weeks, during the past 12-month period- 10 percent; Nonsymptomatic- 0 percent. Note (1): Evaluate sequelae, such as cirrhosis or malignancy of the liver, under an appropriate diagnostic code, but do not use the same signs and symptoms as the basis for evaluation under DC 7354 and under a diagnostic code for sequelae. (See Sec. 4.14.). Note (2): For purposes of evaluating conditions under diagnostic code 7345, ``incapacitating episode'' means a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician. Note (3): Hepatitis B infection must be confirmed by serologic testing in order to evaluate it under diagnostic code 7345. 38 C.F.R. § 4.114, Code 7345 (2009). Looking to these criteria, the Board notes that the daily fatigue reported by the Veteran would be rated as 20 percent disabling. The next higher rating, 40 percent, would require objective findings such as weight loss. In the absence of objective findings, a higher rating is not warranted. The Board has reviewed the entire rating code. There are no applicable criteria that would provide a rating in excess of the current 30 percent without objective medical findings. While the Veteran may feel that his splenomegaly is so debilitating that a higher rating is warranted, the medical findings provide a preponderance of evidence which establishes that the splenomegaly does not approximate and is not analogous to any applicable criteria for a higher rating. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable and the appeal must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The Board has considered the issues raised by the United States Court of Appeals for Veterans Claims (Court) in Hart v. Mansfield, 21 Vet. App. 505 (2007) and whether staged ratings should be assigned. We conclude that the splenomegaly has not significantly changed and uniform rating is appropriate in this case. At no time during the rating period has the disability exceeded the criteria for a 30 percent rating. Other Criteria and Extraschedular Rating The potential applications of various provisions of Title 38 of the Code of Federal Regulations (2009) have been considered whether or not they were raised by the Veteran as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991), including the provisions of 38 C.F.R. § 3.321(b)(1) (2009). The Board finds that the evidence of 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) (2009). While the Veteran may disagree, the preponderance of medical evidence shows that the disability manifestations are adequately compensated by the rating schedule. The evidence does not present such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this regard, the Board finds that there has been no showing by the Veteran that this service- connected disability has resulted in marked interference with employment or necessitated frequent periods of hospitalization beyond that contemplated by the rating schedule. Specifically, the December 2002 VA examination shows the Veteran is unemployed due to his non-service- connected back injury. There is no competent medical evidence that the splenomegaly has any impact on his employability. The Veteran's assertions that the service- connected condition causes extensive impairment are essentially an attempt by a lay witness to diagnose symptoms and are not competent evidence. See 38 C.F.R. § 3.159 (2009). Because they conflict with the medical findings, the Veteran's claims that he has various problems as a result of the splenomegaly are not credible. Further, there is no evidence that the splenomegaly has required hospitalization or even treatment. In the absence of such factors, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for total disability based on individual unemployability (TDIU) is part of an increased rating claim when such claim is raised by the record. The splenomegaly is the Veteran's only service-connected disability. The evidence in this case shows that it is manifested by vague complaints of fatigue and does not by itself render the Veteran unemployable. The evidence shows that the Veteran is unemployed because of non-service-connected injuries. The record here does not raise a TDIU claim. ORDER A rating in excess of 30 percent for splenomegaly is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs