Citation Nr: 1109423 Decision Date: 03/10/11 Archive Date: 03/24/11 DOCKET NO. 09-10 966 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a compensable rating for cholecystectomy and hiatal hernia with laparoscopic surgical scar for chronic abscess cavity. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD A. M. Clark, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1980 to November 2000. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a March 2007 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Atlanta, Georgia. Although the Veteran has submitted evidence of a medical disability, and made a claim for the highest rating possible, he has not submitted evidence of unemployability, or claimed to be unemployable; therefore, the question of entitlement to a total disability rating based on individual unemployability due to a service-connected disability has not been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The Board notes that a statement of the case was issued in January 2006 with respect to increased rating claims for his service-connected coronary artery disease and hypertension. A substantive appeal was not filed with respect to these issues. The Board has considered the case of Percy v. Shinseki, 23 Vet. App. 37 (2009), wherein the United States Court of Appeals for Veterans Claims (Court) found 38 U.S.C.A. § 7105 was not intended to foreclose the Board's exercise of jurisdiction over a matter in which a substantive appeal was untimely. Consequently, because the 60-day filing period is not jurisdictional, VA may waive any issue of timeliness in the filing of the substantive appeal, either explicitly or implicitly, and is not required to close an appeal for failure to file a timely substantive appeal. The Court in Percy also went on to determine that any issue concerning the timely filing of the substantive appeal in that particular case was waived by VA, due to the fact that VA seemed to have treated the Veteran's appeal as if it were timely perfected for more than 5 years before being raised by the Board in the first instance, including almost 2 years after a Board hearing was held on the claim. The case at hand, however, is distinguishable from the case in Percy in that the issue here is not the timeliness of a substantive appeal but the fact that the Veteran never submitted a substantive appeal. No statements have been submitted indicating that he wished to appeal these matters or that he currently believes these matters are on appeal. Moreover, the Veteran's representative submitted a Statement of Accredited Representative in Appealed Case in June 2010 which only addressed the issue of entitlement to a compensable rating for cholecystectomy and hiatal hernia with laparoscopic surgical scar for chronic abscess cavity. Therefore, the Board concludes that the issues regarding his service-connected coronary artery disease or hypertension are not currently on appeal, as neither the Veteran nor his representative have given any indication that he wished them to be appealed. FINDING OF FACT Throughout the period on appeal, the Veteran's cholecystectomy and hiatal hernia with laparoscopic surgical scar for chronic abscess cavity is productive of mild symptoms; however, severe symptoms associated with the removal of his gallbladder, two or more symptoms of less severity related to his hiatal hernia. CONCLUSION OF LAW Throughout the period on appeal, the criteria for a 10 percent rating, but no more, for cholecystectomy and hiatal hernia with laparoscopic surgical scar for chronic abscess cavity, are met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 4.114, 4.118, Diagnostic Codes (DCs) 7346-7318 (2010); 7801, 7802, 7803, 7804, 7805 (2008). (CONTINUED NEXT PAGE) REASONS AND BASES FOR FINDING AND CONCLUSION I. VCAA 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. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. In this case, a letter satisfying the notice requirements under 38 C.F.R. § 3.159(b)(1) was sent to the Veteran in November 2006, prior to the initial RO decision that is the subject of this appeal. The letter informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. With respect to the Dingess requirements, the RO provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2010). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). First, the Veteran has submitted private treatment records. Next, the Veteran was afforded VA examinations in January 2007 and February 2009. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted. VAOPGCPREC 11-95. Here, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's disability since the February 2009 VA examination. The Board acknowledges that Veteran's contentions in his September 2007 notice of disagreement and March 2009 substantive appeal that the VA examiners' misquoted him on their respective examination reports. However, there is nothing in the record to suggest or support the Veteran's allegations that the VA examiners did not faithfully discharge their duties by accurately reporting the findings of the examinations. Moreover, as will be discussed in more detail below, the Board has duly considered his complaints in assigning him a higher rating. Accordingly, the Board finds that VA's duty to assist, with respect to obtaining a VA examination with respect to the issue on appeal, has been met. 38 C.F.R. § 3.159(c)(4). Therefore, the available records and medical evidence have been obtained in order to make an adequate determination as to this claim. Hence, no further notice or assistance is required to fulfill VA's duty to assist 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. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2010). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2010). However, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2010). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2010). As is the case here, where entitlement to compensation has already been established and an increase in the disability ratings are at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). Throughout the rating period on appeal, the Veteran has been rated at a noncompensable rating for his cholecystectomy and hiatal hernia with laparoscopic surgical scar for chronic abscess cavity under DCs 7346-7318. Under DC 7318, a noncompensable evaluation is warranted for the nonsymptomatic residuals of removal of the gall bladder. A 10 percent evaluation requires mild symptoms. A 30 percent evaluation requires severe symptoms. 38 C.F.R. § 4.114, Diagnostic Code 7318. Under DC 7246 a 30 percent rating is warranted for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health, a 10 percent rating is warranted with two or more of the symptoms for the 30 percent evaluation of less severity. Under 38 C.F.R. § 4.114, ratings under diagnostic codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 inclusive will not be combined with each other. Rather, a single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with evaluation to the next higher evaluation where the severity of the overall disability warrants such elevation. See Schedule of Ratings-Digestive System, 38 C.F.R. § 4.114. A letter received by the RO in September 2006, from the Veteran's private treating physician indicated that the Veteran had undergone an emergent laparoscopic cholecystectomy in 1994 while he had been on active duty. In July 2006, the Veteran underwent another operation. At that time, some cholesterol stones free in his peritoneal cavity had been located. The operation had led to the discovery of a chronic abscess cavity filled with clot near the gallbladder fascia. The private physician indicated that the pathology report showed "fibrous and granulation tissue," "chronic inflammation and hemosiderin deposits." He stated that the most likely cause of this chronic abscess cavity was residual infection due to stones being spilled at his laparoscopic cholecystectomy. At his January 2007 VA examination, the Veteran reported that just prior to his recent July 2006 operation, he had experienced an acute onset of right upper quadrant pain, severe cramping pain, bloating abdomen, nausea, but no vomiting. The Veteran sought medical assistance after attempts to get over his condition at home, by resting, did not alleviate his symptomatology. The Veteran subsequently underwent surgery. The Veteran indicated that he sometimes gets a deep seated pain which he gets rarely and instantaneously for a second or so, and then it is gone. He indicated that it occurs on average about one time per week and that it happens fast and is gone so quickly that there is nothing he can do to treat it. The VA examination report indicated that the Veteran did not complain of nausea or vomiting. The VA examiner indicated that the Veteran's liver function tests and renal tests were normal. The VA examiner stated that there was no dysphagia reported for solids or liquids, no persistent pyrosis or epigastric or other pain associated, no arm or substernal pain associated with the hiatal hernia, no reports of hematemesis or melena, no reportable reflex or regurgitation, and no nausea or vomiting since recovering from the surgery. In his September 2007 notice of disagreement, the Veteran indicated that he felt numbness following the surgery and had sharp pain ever so often that he had to treat with pain medication. At a February 2009 VA examination the Veteran denied fat in the stool, yellow jaundice, diarrhea, nausea or vomiting. He reported abdominal pain located at the right side of the abdominal surgical scar site. He stated that it occurred frequently and was described as sharp. He reported the use of Aspirin. The VA examiner indicated that the Veteran experienced pain. In a March 2009 statement, submitted with his substantive appeal, the Veteran indicated that certain things on the January 2007 and February 2009 VA examination reports were false and he did not remember ever answering questions related to fatty food intolerance, diarrhea, constipation, intra-abdominal colicky pain, gassy distention, nausea, vomiting, eruction, biliary problems, icterus, pale stool or acholic stools, dysphagia, pyrosis, epigastric pain, arm or substernal pain, hematemesis or melena, reflux or regurgitation, weight loss, fat in the stool, yellow jaundice, vomiting, abdominal distension, or treatment for his pancreas/gall bladder condition. However, he did not affirmatively indicate that he was currently experiencing any of these particular symptoms. As noted above, the Veteran is to be rated under his "predominant disability." Here, the Veteran's above described symptomatology does not meet a compensable rating under DC 7246. Although the Veteran has reported pain, the evidence does not indicate other symptomatology listed under a 30 percent rating under that diagnostic code. There is no indication by the examinations or in the Veteran's personal statements that he experiences dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain. However, in resolving all doubt in his favor, the Board finds that the above described symptomatology warrants a 10 percent evaluation for mild symptoms under DC 7318. The medical evidence indicates that the Veteran underwent surgery in July 2006 to repair an in-service surgery. The Veteran has described recurring pain associated with residuals of this surgery for which he takes over-the-counter pain medication. As such, the Board finds that a 10 percent evaluation is warranted. A higher (30 percent) rating under DC 7318 for severe symptoms is not warranted. In fact, the February 2009 VA examiner determined that the effect of the Veteran's condition on his usual occupation and on his daily activity was none. Based on his professional determination that the Veteran's condition has no implications on the Veteran's usual occupation or daily activity, the Board finds that a rating in excess of 10 percent is not warranted. The Board will also consider whether the Veteran is entitled to a separate compensable rating for the scar associated with his service-connected cholecystectomy and hiatal hernia. Esteban v. Brown, 6 Vet. App. 259 (1994) (evaluations for distinct disabilities resulting from the same injury could be combined so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition). The Board notes that, while the claim was on appeal, the applicable rating criteria for skin disorders, 38 C.F.R. § 4.118, were revised effective October 23, 2008. See 73 Fed. Reg. 54,710 (Sept. 23, 2008). However, as set forth in the Federal Register, the revised criteria apply to all applications for benefits received by VA on or after the effective date of October 23, 2008. 73 Fed. Reg. 54,710 (Sept. 23, 2008). Because the Veteran's claim was received prior to October 23, 2008, the revised criteria are not for application in this case. Under DC 7801, a 10 percent rating is warranted for scars with an area or areas exceeding 6 square inches (39 sq.cm.). At the January 2007 VA examination the VA examiner noted that the Veteran's abdominal scar was 14.5 cm long by 1.0 cm wide and that there was a 1.0 cm diameter circular scar for the drain, that is about 2.0 cm distal. The February 2009 VA examination noted a right upper quadrant abdomen scar measuring 22 cm by 0.5 cm. As such, the area in square centimeters does not meet the requirements for a compensable rating under DC 7801. With respect to alternate diagnostic codes, the Board has considered DC 7802. Under DC 7802, a 10 percent rating is warranted for scars which are superficial and that do not cause limited motion with an area or areas of 144 sq. inches (929 sq. cm.) or greater. The Veteran's scar does not meet the requirements for a compensable rating under DC 7802. The Board has also considered whether a higher rating is warranted under either DC 7803 or DC 7804. Under DC 7803 a 10 percent rating is warranted for scars which are superficial and unstable. An unstable scar is one where for any reason, there is frequent loss of covering of the skin over the scar. A superficial scar is one not associate with soft tissue damage. Under DC 7804 a 10 percent rating is warranted for scars which are superficial and painful on examination. The January 2007 VA examiner indicated that the scar was not superficial, but rather a deep scar. He indicated that there was no evidence of keloidization. The examiner indicated that the surface of the scar was rough, but not unstable and there were no portions that were smooth or shiny; no ulceration, peeling or flaking were observed either. The February 2009 VA examiner indicated that the scar had hyperpigmentation of less than 6 square inches and there was no tenderness, disfigurement, ulceration, adherence, instability, tissue loss, inflammation, edema, keloid formation, hypopigmentation, abnormal texture or limitation of motion. Based on this evidence a compensable rating is not warranted under DCs 7803 or 7804. As limitation of motion has not been demonstrated, DC 7805 which indicates to rate on limitation of motion of the affected part is not for application. There are no other relevant diagnostic codes for application. With respect to his claim, the Board has also considered the statements of the Veteran that his disability warrants a higher rating. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. He is not, however, competent to identify a specific level of disability of this disorder-according to the appropriate diagnostic codes. Such competent evidence-concerning the nature and extent of the Veteran's cholecystectomy and hiatal hernia with laparoscopic surgical scar for chronic abscess cavity-has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. Based on the evidence, the Board finds that a rating of 10 percent, but not more, is warranted for the disability on appeal. The Board has also considered whether the Veteran is entitled to a referral for an extraschedular rating, which is a component of a claim for an increased rating under Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). The Court recently clarified the analytical steps necessary to determine whether referral for such consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). A determination of whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology first must be made by the RO or Board. If the rating criteria are inadequate, the RO or Board must proceed to determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. In this case, there has been no showing that the Veteran's disability picture could not be contemplated adequately by the applicable schedular rating criteria discussed above. The Veteran's gastrointestinal disability was applied to the applicable rating criteria, general counsel opinions, and case law. Although the applicable criteria provide for higher ratings, the Board fully explained why a higher rating was not warranted. Given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran's gastrointestinal disability picture includes exceptional factors. Referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER A 10 percent rating, but no more, for cholecystectomy and hiatal hernia with laparoscopic surgical scar for chronic abscess cavity is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs