Citation Nr: 1003690 Decision Date: 01/26/10 Archive Date: 02/16/10 DOCKET NO. 06-35 106 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to an increased rating for chronic pain disorder, currently assigned a 50 percent evaluation. 2. Entitlement to an increased rating for umbilical hernia residuals, currently assigned a 20 percent evaluation. 3. Entitlement to compensation under 38 U.S.C.A. § 1151 for additional disability resulting from VA surgery to repair umbilical hernias. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The veteran had active service from January 1973 to January 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from regional office (RO) rating decisions of February 2006, which denied an increased rating for umbilical hernia residuals, and October 2007, which denied an increased rating for chronic pain disorder. In October 2006, he was informed that the RO would not consider his 38 U.S.C.A. § 1151 claim, and he submitted a notice of disagreement with that determination. In November 2009, the veteran appeared at a Board hearing held at the RO (i.e., Travel Board hearing). The issues of entitlement to an increased rating for umbilical hernia residuals, and to compensation under 38 U.S.C.A. § 1151 for additional disability resulting from VA surgery to repair umbilical hernias are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Chronic pain disorder is manifested by occupational and social impairment with reduced reliability and productivity due to symptoms including depression and somatic concerns with pain. CONCLUSION OF LAW The criteria for an evaluation in excess of 50 percent for chronic pain disorder have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.125, 4.126, 4.130, Diagnostic Code 9422 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In a letter dated in August 2007, prior to the adjudication of the claim, the Veteran was advised of the information necessary to substantiate the increased rating claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The RO advised the claimant of his and VA's respective duties for obtaining different types of evidence. The Veteran was informed 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., treatment records, or statements of personal observations from other individuals. He was informed that 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. This notice was in accordance with Vazquez- Flores v. Peake, 22 Vet. App. 37 (2008); other notice requirements mandated by that decision were found to be beyond the scope of notice required by the VCAA in a Federal Circuit Court decision which vacated that decision. Vazquez- Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. Sep. 4, 2009). Specifically, the Federal Circuit Court held that that VCAA notice need not be veteran specific, or refer to the effect of the disability on "daily life." In addition, he was given information regarding effective dates. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Under the VCAA, the VA also has a duty to assist the Veteran by making all reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2009). The Veteran's VA and service treatment records have been obtained, as have other treatment records adequately identified by the Veteran. A VA examinations was provided in August 2007; that examination report described the disability in sufficient detail for the Board to make an informed decision. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). There is no evidence indicating that there has been a material change in the service-connected disorder since this last VA examination. 38 C.F.R. § 3.327(a). Thus, the Board finds that all necessary notification and development has been accomplished, and therefore appellate review may proceed. 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). II. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A § 1155; 38 C.F.R. Part 4. Although the disability must be considered in the context of the whole recorded history, including service medical records, the present level of disability is of primary concern in determining the current rating to be assigned. See 38 C.F.R. § 4.2 (2007); Francisco v. Brown, 7 Vet. App. 55 (1994); Schafrath v. Derwinski, 1 et. App. 589 (1991). If the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending, staged ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran claims entitlement to an increased rating for chronic pain disorder associated with both psychological factors and general medical condition, rated 50 percent disabling effective from July 1992. When a single disability has been diagnosed both as a physical condition and as a mental disorder, the rating agency shall evaluate it using a diagnostic code which represents the dominant (more disabling) aspect of the condition. 38 C.F.R. § 4.126(d). The RO, however, separately rated service-connected status post umbilical hernia repair, assigned a 20 percent rating, as well as other disabilities including residuals of left thoracotomy with bronchiogenic cyst with chronic denervation changes and scar, assigned a 30 percent rating. Because the RO chose to rate these conditions separately, care must be taken to avoid care must be taken to avoid pyramiding, i.e., rating the same symptoms under separate diagnostic codes. See 38 C.F.R. § 4.14. Psychiatric disabilities, including pain disorder, are evaluated under a general rating formula for mental disorders. 38 C.F.R. § 4.130. According to the general rating formula, a mental disorder is rated 30 percent when it results in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Code 9422. A rating of 50 percent is assigned when it results in occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A rating of 70 percent is warranted when it results in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obses-sional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned when the condition results in total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The criteria set forth in the rating formula for mental disorders do not constitute an exhaustive list of symptoms, but rather are examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). According to the report of a comprehensive evaluation by R. Townsend, Ph.D., in July 2007, the Veteran described a history of pain and depression. The results, including psychological testing, suggested that the Veteran was mildly depressed, anxious, socially conforming, somewhat perfectionistic, with chronic, perceived somatic pain. He presented a normal energy and activity level. The diagnostic impression was mood disorder due to chronic pain syndrome with depressive features. His GAF was 55. On a VA examination in August 2007, the Veteran reported that he slept 8 hours per night, although he felt his sleep was fitful. During the day, he took care of his granddaughter. The Veteran did not like to leave the house, but did not display isolation, withdrawal, significant anxiety, panic attacks, or psychosis. Social functioning was limited. He said he heard his voice called occasionally, but there was no evidence of psychosis. Mental status examination revealed the Veteran to be friendly, cooperative, and relaxed. His affect was appropriate, although his mood was slightly depressed. His complaints were of fatigue, depression, and a desire to stay home due to sadness. There as no impairment of thought process, delusional material, or suicidal or homicidal ideation. The examiner concluded that he had a depressive disorder, mild, related to his chronic pain syndrome. The depressive disorder symptoms resulted in a GAF of 65. The effects on his occupational and social functioning appeared to be moderately severe. He also had an organic pain syndrome, with psychological and medical aspects, which was not included in the GAF. VA outpatient treatment records dated in September 2007 note that the Veteran had occasional peri-umbilical pain from his hernia. He had a history of depression, well-controlled on nortriptyline. A private evaluation in November 2007, conducted at Pacific Health Systems, noted that the Veteran complained of chronic pain disorder associated with both psychological factors and general medical condition. Also noted was depression and possible mild dementia. Mental status examination noted a history of hallucinations and delusions, and the Veteran reported crying, loss of interest, fatigue, and poor concentration. Moderate panic attacks were reported, and he was noted to be paranoid because of hallucinations. He was diagnosed as having mood disorder due to chronic pain with depressive features, with an Axis III diagnosis of chronic, neuropathic pain. In June 2008, Dr. Townsend provided an updated evaluation, noting that the Veteran had been prescribed medication by a psychiatrist, and that much of his time in early 2008 had been occupied with post-surgical care of his wife (although other records indicate he is unmarried). Otherwise, his report essentially reiterated his earlier findings. VA outpatient treatment records dated in April 2008 show that the Veteran had depression, controlled on nortriptyline. A depression screen at that time was negative, and there was no mention of a pain disorder. In January 2009, his depression was noted to be controlled with nortriptyline, with chronic pain syndrome noted as well. The evidence shows that the Veteran has demonstrated few of the listed symptoms characteristic of a 50 percent rating, and none of the symptoms indicative of a 70 percent rating. Although the private evaluation in November 2007 noted hallucinations and delusions, such symptoms were not noted elsewhere, either before or after that examination. Moreover, that examination, which primarily required the examiner to simply circle or check off listed symptoms, is less detailed than the other examinations, which present the information in a narrative format enabling the author to place the information in context. For these reasons, that examination report is of considerably less probative value than the other records. As to non-listed, but comparable symptoms, the chief symptom is the Veteran's somatic preoccupation with pain that he believes is due to his umbilical hernia surgeries. Particularly in view of the absence of most of the criteria reflecting a 50 percent rating, the Board finds that this symptom is contemplated by the 50 percent rating current in effect. In this regard, Dr. Townsend concluded that the Veteran had a GAF of 55. The GAF (global assessment of functioning) is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness. See Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV); Carpenter v. Brown, 8 Vet. App. 240 (1995). A 51-60 GAF score indicates moderate symptoms (e.g., a flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). Although the VA examiner estimated the GAF to be 65, reflecting mild symptoms, his estimate was based only on the symptoms of depression, and so is less probative than Dr. Townsend, whose estimates were based on all psychiatric symptomatology. In sum, the Veteran's symptoms of depression and somatic preoccupation with pain are contemplated by the 50 percent rating currently in effect. He does not have suicidal ideation, obsessional rituals, illogical, obscure, or irrelevant speech, spatial disorientation, neglect of personal appearance and hygiene, or comparable symptoms. He does not have near-continuous panic or depression affecting the ability to function independently, appropriately and effectively. Although limited in number, he is able to establish effective relationships. Throughout the appeal period, his symptoms as a whole have not caused social and occupational impairment comparable to the level more closely approximating a higher rating. Referral for extraschedular consideration is not appropriate, because the schedular criteria are explicitly based on social and industrial impairment resulting from symptoms which, if not listed, are comparable in the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan, supra. Therefore, the rating criteria are adequate, and explicitly take into consideration the degree of interference with employment, while hospitalization has not been shown; thus, extraschedular consideration is not warranted. See 38 C.F.R. § 3.321(b)(1); Thun v. Peake, 22 Vet. App. 111 (2008). Moreover, he is in receipt of a TDIU rating. Additionally, the evidence does not show that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending. Hart v. Mansfield, 21 Vet. App. 505 (2007). Accordingly, a question as to which of two evaluations to apply has not been presented, and the disability picture does not more nearly approximate the criteria required for the next higher rating. 38 C.F.R. § 4.7 (2007). In reaching this determination, the Board is mindful that all reasonable doubt is to be resolved in the Veteran's favor. The preponderance of the evidence, however, is against the claim, and the claim must be denied. 38 U.S.C.A. § 5107(b); see Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER A rating in excess of 50 percent for chronic pain disorder is denied. REMAND Increased Rating For Umbilical Hernia Residuals On the VA examination in July 2007, the Veteran was diagnosed as having an incomplete small bowel obstruction secondary to adhesions related to umbilical hernia and postoperative complications. Symptoms, if any, associated with this obstruction were not reported, however. An evaluation by R. Hood, M.D., in November 2008 also noted the adhesions with bowel obstruction, but the only symptom was recurrent episodes of abdominal discomfort. Though most records show occasional pain, and, when an umbilical hernia is noted, it has been easily reducible. In March 2009, however, H. Barrera, M.D., wrote that there was no ventral hernia , and so he suspected that the Veteran's discomfort was related to chronic scar tissue and possible nerve entrapment from the mesh. The possibility of nerve entrapment has not previously been considered in connection with this disability. The Veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Moreover, there is no indication of what symptoms, if any, are associated with potential partial bowel obstruction. Accordingly, the Veteran should be scheduled for an examination, and recent treatment records obtained as well. Compensation Under 38 U.S.C.A. § 1151 During the course of this appeal, the Veteran's contentions have been largely concerned with his belief that he has additional disability due to VA treatment, which should be compensated under 38 U.S.C.A. § 1151, and that the RO failed to follow the directives set forth in May 2005 Board decision, which referred the apparent 38 U.S.C.A. § 1151 claim to the RO for "appropriate action." The disability (umbilical hernia) for which the VA surgery was performed, however, was a service-connected disability, and, thus, service connection is in effect, or may be granted, for residuals of that surgery, as secondary to, or part of, the service-connected disability. Moreover, service connection does not require a showing of VA fault or negligence as does a claim based on 38 U.S.C.A. § 1151, and, thus, it is easier to establish entitlement. In this regard, the Veteran's administrative Tort Claim was denied by the VA Regional Counsel in February 2006. The RO did take action on this claim, informing the Veteran, in a statement of the case (on the increased rating issue) dated in October 2006, that a separate 38 U.S.C.A. § 1151 claim would not be considered because entitlement under that statute applies to claims where service connection has not already been established. He was informed that because he was already service-connected for the disability being claimed, there was no provision for a claim under 38 U.S.C.A. § 1151. Nevertheless, the Veteran has a right to appeal, and he filed a notice of disagreement in October 2006, stating that he was seeking benefits for surgery residuals for which he was not service-connected. Moreover, while the RO did not formally adjudicate the 38 U.S.C.A. § 1151 claim, he may appeal the RO's deemed denial. See Deshotel v. Nicholson, 457 F.3d 1258 (Fed. Cir. 2006) (If the record shows the existence of an unadjudicated claim, raised along with an adjudicated claim, and the RO's decision acts (favorably or unfavorably) on one of the claims but fails to specifically address the other claim, the second claim is deemed denied, and the appeal period begins to run.). Therefore, the Veteran's October 2006 notice of disagreement was sufficient to address that issue, and the Court has held that where an NOD has been filed with regard to an issue, and an SOC has not been issued, the appropriate Board action is to remand the issue to the RO for issuance of an SOC. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: Increased Rating for Umbilical Hernia Residuals 1. Obtain all VA treatment records dated from January 2009 to the present. 2. Ask the Veteran to identify any records of private treatment or evaluations for umbilical hernia residuals from July 2006 to the present, which have not been previously submitted. Make all required attempts to obtain records so identified. 3. Then, schedule the veteran for a VA examination to determine the manifestations of his umbilical hernia residuals, to include, if present, residuals of associated partial small bowel obstruction and/or nerve entrapment. The claims folders and a copy of this REMAND be made available to the examiner prior to the examination. All symptoms associated with the umbilical hernia residuals should be described. 4. After completion of the above and any additional development deemed necessary, readjudicate the claim on appeal, to include whether staged ratings are appropriate for any distinct period of time. If the decision remains adverse to the veteran, he and his representative should be furnished a supplemental statement of the case, and afforded an opportunity to respond before the case is returned to the Board. Compensation Under 38 U.S.C.A. § 1151 5. Send the Veteran adequate VCAA notice with respect to the claim for compensation under 38 U.S.C.A. § 1151 for additional disability resulting from VA surgery to repair umbilical hernias. In addition to the basic notice, he should be asked to identify the approximate date(s) of the surgery or surgeries, as well as the symptoms he is claiming as additional disability. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). 6. After allowing time for the Veteran to respond to the notice letter, and after undertaking any appropriate development based on the Veteran's response, adjudicate the issue of entitlement to compensation under 38 U.S.C.A. § 1151 for additional disability resulting from VA surgery to repair umbilical hernias. If the claim is denied, furnish the veteran and his representative with a STATEMENT OF THE CASE concerning that issue. The veteran should also be informed of his appeal rights and of the actions necessary to perfect an appeal on this issue. The issue should only be returned to the Board if the appeal is perfected. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs