Citation Nr: 1301089 Decision Date: 01/10/13 Archive Date: 01/16/13 DOCKET NO. 98-05 529A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to an increased rating for peritoneal adhesions associated with a psychophysiological gastrointestinal reaction, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran had active service from January 1954 to January 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office in Indianapolis, Indiana (RO), which denied the claim for an increased rating for peritoneal adhesions. The Veteran's claim was previously before the Board, and in a December 2000 remand, the claim was returned to the RO for additional development. In May 2005, the Board denied the Veteran's claim and he appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In January 2008, the Court vacated and remanded the May 2005 Board decision for readjudication. Pursuant to the Court's determination, the Board remanded the case in October 2008. The issue was then again remanded in April 2010 and March 2012 for additional development. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's peritoneal adhesions are not shown to be moderately severe in degree with partial obstruction manifested by delayed motility of barium meal and more than occasional episodes of pain nor is there severe impairment with definite partial obstruction shown by X-ray, with frequent and prolonged episodes of severe colic distension, nausea or vomiting, following severe peritonitis, ruptured appendix, perforated ulcer, or operation with drainage. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for peritoneal adhesions associated with a psychophysiological gastrointestinal reaction have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2011); 38 C.F.R. §§ 4.113, 4.114, 4.126(d), Diagnostic Code 7301 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim, including apprising him or her of the information and evidence he or she is responsible for providing versus the information and evidence VA will obtain for him or her. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim: (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), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). So this notice must include information that a "downstream" disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id., at 486. Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has made clear that VCAA notice errors are not presumptively prejudicial, rather, must be determined on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran, not VA, bears this burden of proof of establishing there is a VCAA notice error and, moreover, above and beyond this, that the error is unduly prejudicial, meaning outcome determinative of the claim. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The notice requirements under 38 U.S.C.A. § 5103 underwent significant changes during the pendency of the Veteran's appeal. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) recently held that, for increased rating claims, notice provided to the Veteran under 38 U.S.C.A. § 5103 need not be "veteran specific," and that VA is not required to notify the Veteran that he may submit evidence of the effect of his worsening disability on his daily life, nor is VA required to notify the Veteran of diagnostic codes that his disability may be rated under. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). \ The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of the claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004). Duty to assist and VCAA letters were sent in October 1997, September 1999, February 2002, May 2010, and April 2012. The letters, especially in combination, indicated the type of evidence and information needed to substantiate the claim and apprised the Veteran of the Veteran's and VA's respective responsibilities in obtaining this supporting evidence. The letters also complied with Dingess. Regarding the duty to assist, the Veteran's pertinent medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. There is no objective evidence indicating that there has been a material change in the service-connected disability since the Veteran was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95. In this case, the claim has been remanded on numerous occasions to ensure that there is an adequate VA examination to rate the Veteran. The examination reports taken cumulatively, with particular attention paid to the most recent VA examination conducted in June 2012, reflects finally thorough findings which are supported by the record. In addition, this recent examination is adequate as the claims file was reviewed, the examiner reviewed the pertinent history, examined the Veteran, provided findings in sufficient detail, and provided rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Veteran was specifically examined to assess and then reassess the severity of this disability in question. See Caffrey v. Brown, 6 Vet. App. 377 (1994); Olsen v. Principi, 3 Vet. App. 480, 482 (1992); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); and Allday v. Brown, 7 Vet. App. 517, 526 (1995). The records satisfy 38 C.F.R. § 3.326. Furthermore, in obtaining this additional medical comment and examination, the Board is satisfied there was compliance with prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (indicating the Veteran is entitled, as a matter of law, to compliance with a remand directive and that the Board, itself, commits error in failing to ensure this compliance). See also Dyment v. West, 13 Vet. App. 141, 146-47 (1999); and D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (discussing situations when it is acceptable to have "substantial", though not "exact", compliance with a remand directive). In summary, the Board finds that "it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence he should submit to substantiate his claim." See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the Veteran). 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 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. However, if VA's adjudication of an increased rating claim is lengthy, a claimant may experience multiple distinct degrees of disability that would result in different levels of compensation from the time the increased rating claim was filed until a final decision on that claim is made. Thus, VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased-rating claim has been pending. Cf. McClain v. Nicholson, 21 Vet. App. 319, 323 (2007) (Board finding that veteran had disability "at some point during the processing of his claim," satisfied service connection requirement for manifestation of current disability); Moore v. Nicholson, 21 Vet. App. 211, 216-17 (2007). In Hart v. Mansfield, 21 Vet. App. 505 (2007), the United States Court of Appeals for Veterans Claims ("the Court") found no basis for drawing a distinction between initial ratings and increased rating claims for applying staged ratings. Accordingly, it was held that ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. In this case, there has not been a material change in the disability level and a uniform rating is warranted. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C.A. § 1155). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). The Veteran is currently assigned a 10 percent disability rating for peritoneal adhesions associated with psychophysiological gastrointestinal reaction under the provisions of 38 C.F.R. § 4.114, Diagnostic Code 7301. He contends that his peritoneal adhesions are more disabling than currently evaluated and has appealed for an increased rating. The Board observes that 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. See 38 C.F.R. §§ 4.14, 4.126(d). According to the evidence of record, the Veteran's peritoneal disability has been determined to be the dominant aspect of the service-connected disability. There are diseases of the digestive system, particularly within the abdomen, which, while differing in the site of pathology, produce a common disability picture characterized in the main by varying degrees of abdominal distress or pain, anemia and disturbances in nutrition. Consequently, certain coexisting diseases in this area do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding as outlined in 38 C.F.R. § 4.14. See 38 C.F.R. § 4.113. According to 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. A single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. See 38 C.F.R. § 4.114. As noted, the Veteran has been rated under Diagnostic Code 7301. Under that code, adhesions of the peritoneum are assigned a 10 percent rating for moderate adhesions of the peritoneum with pulling pain on attempting work or aggravated by movements of the body, or occasional episodes of colic pain, nausea, constipation (perhaps alternating with diarrhea) or abdominal distension. A 30 percent rating is assigned for moderately severe adhesions of the peritoneum with partial obstruction manifested by delayed motility of barium meal and less frequent and less prolonged episodes of pain. A 50 percent disability rating is assigned for severe adhesions of the peritoneum with definite partial obstruction shown by X-ray, with frequent and prolonged episodes of severe colic distension, nausea or vomiting, following severe peritonitis, ruptured appendix, perforated ulcer, or operation with drainage. Historically, service connection for peritoneal adhesions was granted in a May 1957 rating decision and a 10 percent rating was assigned under Diagnostic Code 7301, effective January 1957. In May 1997, correspondence was received from the Veteran in which he specifically requested an increased rating. He asserted that his peritoneal adhesions caused him to be unable to obtain an erection and that he used a penile implant that gave him a great deal of pain. He also indicated that the adhesions themselves gave him a great deal of pain. Thereafter VA outpatient treatment records were obtained. During VA outpatient treatment in 1997, it was noted that the Veteran developed peritoneal adhesions following his appendix rupturing in 1955. He maintained that he continued to have abdominal pain. While a June 1997 VA examination report noted that the Veteran had a penile prosthesis, his peritoneal adhesions were not discussed as the etiology of the Veteran's history of impotence. It was noted that the Veteran should see another physician concerning his abdominal disability. In February 1998, the Veteran was afforded a VA examination. At that time, the Veteran complained of abdominal pain secondary to adhesions. He stated that the pain occurred once each week or once every 2 weeks and lasted 2 to 3 days. He described the pain as cramping in nature and stated it was located in the right and left lower quadrant. He denied having any relieving factors, but stated that the pain usually subsided on its own. He also described having constipation for 1 to 2 days, followed by diarrhea. On physical examination, the Veteran stated that his weight had increased by 10 pounds after having surgery in 1997. His abdomen was soft with diffuse tenderness. There was no guarding or rebound tenderness. There was also no hepatosplenomegaly or masses. The Veteran exhibited good bowel sounds. The examiner stated that the Veteran had symptoms of abdominal pain and alternating constipation and diarrhea once a week or once every 2 weeks, lasting 2 to 3 days. In July and August 1999, the Veteran was examined by VA again. The Veteran reported that he had undergone a Whipple procedure and had experienced a lot of abdominal cramps, pain, and diarrhea. On physical examination, the Veteran did not appear in distress or discomfort. His abdomen had multiple surgical incisions which were all intact. The abdomen was soft, nontender, and non-distended. He had normoactive bowel sounds in all four quadrants. The examiner noted that the Veteran pancreatitis and other pancreas problems would require the lifetime use of pancreatic enzymes to assist the Veteran in digesting food as well as to help decrease pancreatic insufficiency which often resulted in diarrhea, due to maldigestion. In December 2000, the Board remanded this case for an examiner to distinguish the symptoms associated with the Veteran's postoperative Whipple resection and his service-connected peritoneal adhesions. The following was requested: The RO should afford the Veteran a VA examination, with an appropriate examiner, to determine the nature and extent of any residuals of the Veteran's April 1997 VA Whipple procedure, as well as the nature and extent of his current peritoneal adhesions and psychophysiological gastrointestinal reaction. The Veteran's claims file should be made available to the examiner prior to the examination, and the examiner is requested to review the entire claims file in conjunction with the examination. All tests and studies deemed necessary should be performed. Based on a review of the claims file and the clinical findings of the examination, the examiner is requested to provide an opinion as to whether it is at least as likely as not that the veteran currently suffers from any disability that can be causally related to his April 1997 VA Whipple procedure. If any such disability is noted, the examiner should further comment on whether such disability represents a necessary consequence of the surgery; if the disability is found not to be a necessary consequence of the surgery, the examiner is then requested to note whether it is at least as likely as not that such disability resulted from fault or negligence on the part of VA treatment providers. Also, if any additional disability is noted, the examiner should, to the extent possible, distinguish the symptoms of this disability from those attributable to the Veteran's service-connected peritoneal adhesions. If no such distinction can be made, the examiner should so state. All opinions and conclusions expressed should be supported by a complete rationale in a typewritten report. In response, in March 2003, the Veteran was afforded another VA examination. At that time, the Veteran complained of diarrhea and abdominal pain. He also indicated that, at times, he had a bowel movement every 1 to 2 hours, limiting him socially. The Veteran also reported chronic right lower quadrant sharp pain and denied weight loss. Physical examination revealed that the Veteran complained of pain in the right lower quadrant. There was a scar of prior surgery. Bowel sounds were good. The Veteran had a stool Wright stain done which was negative. A Sudan stain of the stool was also normal. A colonoscopy revealed a few small-mouth diverticula in the entire colon. An upper gastrointestinal endoscopy revealed Grade I reflux esophagitis. A computerized tomography (CT) of the abdomen revealed small gastric varices, some fatty replacement of the liver, degenerative joint disease, and vascular calcification. The impression was diarrhea and abdominal pain. The examiner stated that the Veteran's complaint of right lower quadrant abdominal pain could be related to his undergoing the Whipple procedure in 1997 (which is neither service-connected nor subject to compensation from 38 U.S.C.A. § 1151 entitlement). He noted that it could also be related to the development of adhesions, though that could only be proved by undergoing CT enteroclysis. He maintained that if such adhesions did exist, they would represent a necessary consequence of the surgery. With respect to the Veteran's complaints of diarrhea, the examiner asserted that the diarrhea was related to the fact that the Veteran failed to take pancreatic enzyme replacement medications regularly. As noted in the introductory portion of this decision, in May 2005, the Board denied the claim for an increased rating and this decision was appealed to the Court, which in turn vacated the Board's decision. The May 2005 Board decision was vacated by the Court because the Board failed to ensure compliance with its December 2000 remand instructions to obtain a comprehensive examination to determine the nature and extent of any residuals of the Veteran's 1997 Whipple procedure (a matter no longer on appeal as it was denied by the Board previously in March 2012) and the severity of his service-connected peritoneal adhesions and psychophysiological gastrointestinal reaction. It was noted that the Board had instructed the examiner to, in part, identify and differentiate all symptoms related to peritoneal adhesions from any identified residuals related to the Whipple procedure. Although the VA examiner in March 2003 indicated that the Veteran's diarrhea was not related directly to the Whipple procedure, but rather to being noncompliant with his pancreatic medications, he did not offer a definitive opinion concerning the etiology of the Veteran's abdominal pain. In the Court's determination, it was noted that the VA examiner in March 2003 indicated that the Veteran's abdominal pain could be related to peritoneal adhesions or possibly to the Whipple procedure, and that only a CT enteroclysis would reveal whether there were any adhesions. However, no diagnostic tests were conducted to resolve the matter, despite the Board's specific instructions to conduct "all tests and studies deemed necessary." The Court also noted that the criteria for the next higher rating for peritoneal adhesions required partial obstruction manifested by delayed motility of barium meal. However, as the examiner did not conduct any additional tests, and did not offer any discussion or analysis concerning the severity of the Veteran's adhesions with respect to the rating criteria, there was insufficient information of record to determine the current severity of his service-connected disability. Accordingly, the Board remanded the case for additional records to be obtained and for the Veteran to be afforded another examination as follows, in pertinent part: The Veteran should be afforded a VA gastroenterology examination to determine the extent and severity of the service-connected peritoneal adhesions and psychophysiological gastrointestinal reaction, and the nature and extent of any residuals of the Veteran's April 1997 Whipple procedure. The claims folder and a copy of this remand must be made available to the examiner for review, and a notation to the effect that this record review took place should be included in the report. All indicated tests and studies should be accomplished, and the findings reported in detail. The tests ordered should include those necessary to determine the extent and severity of any peritoneal adhesions. The examiner should provide a response to the following: The examiner should indicate whether the adhesions of the peritoneum are moderate, moderately severe, or severe in degree. I f the adhesions are moderately severe, the examiner should indicate whether there is partial obstruction manifested by delayed motility of a barium meal and less frequent and less prolonged episodes of pain than are present with severe adhesions. The examiner must also comment on the presence or absence of severe colic distension, nausea and vomiting. The examiner should identify the specific etiology of the Veteran's abdominal pain, vis-à-vis, whether it is a residual of the service-connected peritoneal adhesions or causally related to the Whipple procedure. If no such distinction can be made, the examiner should so indicate. The examiner is also requested to distinguish, to the extent possible, the symptoms due to the Veteran's service-connected peritoneal adhesions from any additional disability determined to be the result of the April 1997 Whipple procedure. If no such distinction can be made, the examiner should so indicate. If the examiner is unable to answer the above inquiries, this should be so indicated and an explanation included. A complete rationale must be provided for all conclusions reached and opinions expressed. The clinical findings and reasons upon which the opinions are based should be typed or otherwise recorded in a legible manner for review purposes. A VA examination was thereafter completed in August 2009. The examiner noted that there was a history of daily nausea, diarrhea occurring more than 6 times per day, constipation occurring less than monthly, and gastrointestinal pain which radiated horizontally across the upper abdomen; however, there was no vomiting, fistula, other symptoms, or episodes of abdominal colic or distention. The examiner indicated that there were no signs consistent with a partial obstruction. Physical examination revealed mild diffuse nonspecific tenderness, mild gaseous distention, no rebound, mass, or guarding. The Veteran was nontender along his surgical scars, with no complications of the scars. The examiner felt that the negative effects on daily functioning and employment were related to the Veteran's prior Whipple procedure. The VA examiner further determined that the Veteran's abdominal pain was a result of his Whipple procedure, and not related to service-connected peritoneal adhesions. The examiner also indicated that the Veteran's peritoneal adhesions were not moderately severe in degree. However, a CT enteroclysis was not performed to determine the severity of the Veteran's adhesions and the examiner did not provide an explanation as to how he determined the presence and severity of such a disability without such recommended testing. Further, testing again was not completed to determine if the Veteran had partial obstruction manifested by delayed motility of barium meal as described by the Court. Therefore, in April 2010, the Board again remanded this case for a new VA examination to include a CT enteroclysis of the abdomen to determine the presence and severity of the Veteran's abdominal adhesions, and barium meal testing to determine if the Veteran has partial obstruction manifested by delayed motility of barium meal. In addition, the Board noted that if the VA examiner determined that any such testing is not necessary to determine the extent and severity of any peritoneal adhesions, the VA examiner must explain why such testing is unnecessary and must explain the medical basis for his conclusions. If the examiner determined that other testing will provide the same information, an explanation should be provided and such testing ordered. Specifically, the following was ordered: The Veteran should be afforded a VA gastroenterology examination to determine the extent and severity of the Veteran's service-connected peritoneal adhesions and psychophysiological gastrointestinal reaction. The claims folder and a copy of this remand must be made available to the examiner for review prior to examination. The new VA examination should include a CT enteroclysis of the abdomen to determine the presence and severity of abdominal adhesions, and barium meal testing to determine if the Veteran has partial obstruction manifested by delayed motility of barium meal. If the VA examiner determines that any such testing is not necessary to determine the extent and severity of any peritoneal adhesions, the VA examiner must explain why such testing is unnecessary and he or she must explain the medical basis for his conclusions. If the examiner determines that alternate testing would provide the same information, such testing should be ordered and the examiner should explain why such alternate testing was conducted. The Veteran is free to decline any testing procedures ordered in this remand. If the Veteran declines to complete any such testing, a notation of such should be made in the claims file. After all testing deemed to be necessary by the VA examiner has been completed, the examiner should provide an opinion as to the severity of any service-connected peritoneum adhesions which is responsive to the rating criteria for adhesions of the peritoneum. A). The examiner should specifically state whether the Veteran has moderately severe adhesions and whether there is evidence of partial obstruction manifested by delayed motility of barium meal and less frequent and less prolonged episodes of pain. See 38 C.F.R. § 4.114 Diagnostic Code 7301. B). The examiner should specifically state whether the Veteran has severe adhesions with definite partial obstruction shown by x-ray, frequent and prolonged episodes of severe colic distension, nausea or vomiting, following severe peritonitis, ruptured appendix, perforated ulcer, or operation with drainage. Id. The examiner must provide a complete rationale for all opinions rendered with references to the evidence of record and must differentiate the symptomatology (including complaints of diarrhea and abdominal pain) due to the Veteran's service-connected peritoneal adhesions from the residuals of the Whipple procedure. If such a distinction cannot be made, the examiner should so indicate and provide a detailed rationale. The Board again notes that if either a CT enteroclysis of the abdomen, or barium meal testing is deemed to be unnecessary for rating purposes by the VA examiner, the examiner should provide an explanation as to why such testing is unnecessary, and provide a complete explanation as to how a determination was made as to the severity of the Veteran's service-connected disability and how any related symptomatology was distinguished from the residuals of the Whipple procedure. The Veteran was afforded another examination in July 2011. At that time, the Veteran reported gastrointestinal problems which he basically indicated were worse after the Whipple procedure. He indicated that he took one pill before he started to eat or he would get loose bowel movements, bloating, abdominal discomfort, and increased gassiness. If he took the medication consistently, he had 5-6 pudding like movements a day, basically split between daytime and nighttime. He also reported having about one episode of fecal incontinence a month, which occurred at night. He also related that he had fecal seepage which required him to change his underwear during the day. The stool had a strong odor which he found embarrassing. The Veteran also related that he had nausea and queasiness, but no vomiting. The pain was a pressure sensation that was worse when he wore a belt around his abdomen. The pain was typically a 6 to 7 out of 10 on a pain scale of 1 to 10 with 10 being worse. The pain went up to a 10 if he wore a belt. The pain also increased with walking. When he was jostled such as when driving on the road, this also aggravated his abdominal pain. In addition, certain foods were poorly tolerated and increased symptoms. The Veteran indicated that eating small and more frequent meals helped. He denied having any problems maintaining his weight and his appetite remained good. Physical examination revealed multiple well healed scars (from the Whipple procedure) in the right upper quadrant, midline abdominal, and right lower quadrant. The scars were minimally tender to palpation. The abdomen was soft, non-tender to light palpation, and had mild gaseous distention. It was diffusely tender to deeper palpation (non-specific). There was no organomegaly appreciated. Bowel sounds were normoactive. There was no evidence of ventral or groin hernia. It was noted that the Veteran was employed full-time as a truck driver. It was noted that the Veteran's abdominal disabilities effected his daily living and employment as the Veteran had decreased concentration, poor social interactions, lack of stamina, weakness or fatigue, fecal incontinence, and pain. He was unable to exercise or play sports; had severe impairment for recreation and toileting; had moderate impairment for chores, shopping, and traveling and had no impairment for bathing, dressing, or grooming. The July 2011 examiner addressed the differentiation of symptomatology, including abdominal pain and diarrhea, regarding whether each was related to the Veteran's service-connected peritoneal adhesions or the result of the Whipple procedure. The examiner stated that it was impossible to determine what percentage of the symptoms was related to either the service-connected peritoneal adhesions or the Whipple procedure. The examiner also addressed the question of whether the Veteran had severe adhesions by noting that the record did not contain any evidence of hospitalization or obstruction as well as noting that there was no evidence of severe colic distension or vomiting. A CT enteroclysis was still not performed to determine the severity of the Veteran's adhesions and the examiner did not provide an explanation as to how a determination was made regarding the presence and severity of such a disability without such recommended testing. The examiner stated, however, that another CT enteroclysis should not be performed because the Veteran had been subjected to two other CT scans in the past two years and should therefore not be exposed to further radiation. The Board further notes that two private CT scans of the abdomen were performed in November 2010 and July 2011. The November 2010 report regarding the CT scan did not note anything regarding the Veteran's peritoneal adhesions or previous surgical procedures. The July 2011 CT scan report noted no retroperitoneal lymphadenopathy or hemorrhage with remaining abdominal viscera showing no convincing abnormality. The examiner also addressed the Board's question regarding whether the Veteran had moderately severe adhesions and whether there was evidence of partial obstruction manifested by delayed motility of barium meal by noting that the Veteran had no documented bowel obstructions warranting frequent hospitalizations which severe adhesions would be expected to cause. Additionally the examiner noted that the Veteran had adequately maintained his weight over a period of nine years which would not be possible if he had severe adhesions as he would likely show signs of compromised nutritional status or dehydration. In both instances the examiner stated that the Veteran did not have severe adhesions. However, the Board notes that it was unclear in this examination report whether these assessments also meant that the Veteran did not have moderately severe adhesions. Also, testing again was not completed to determine if the Veteran had partial obstruction manifested by delayed motility of barium meal as described by the Court in its prior determination. The examiner stated that a barium meal or barium swallow test would not be subtle enough to provide the information requested and as such was not necessary to perform. Thus, unfortunately, in April 2012, the Board had to remand this case again. The following was requested: The Veteran should be afforded a VA gastroenterology examination to determine the extent and severity of the Veteran's service-connected peritoneal adhesions and psychophysiological gastrointestinal reaction. The claims folder and a copy of this remand must be made available to the examiner for review prior to examination. The examination should include barium meal testing (as required by the VA Rating Schedule) to determine if the Veteran has partial obstruction manifested by delayed motility of barium meal. If the examiner determines that alternate testing would provide the same information, such testing should be ordered and the examiner should explain why such alternate testing was conducted. If all such testing is contraindicated in this case, the examiner should provide an explanation and provide alternative clinical findings to address the relevant criteria. It is noted however, that any testing or examination must address whether partial obstruction exists. The Veteran is free to decline any testing procedures ordered in this remand. If the Veteran declines to complete any such testing, a notation of such should be made in the claims file. After all testing deemed to be necessary by the VA examiner has been completed, the examiner should provide an opinion as to the severity of any service-connected peritoneal adhesions which is responsive to the rating criteria for adhesions of the peritoneum. a. The examiner should specifically state whether the Veteran has severe adhesions with definite partial obstruction shown by x-ray, frequent and prolonged episodes of severe colic distension, nausea or vomiting, following severe peritonitis, ruptured appendix, perforated ulcer, or operation with drainage. See 38 C.F.R. § 4.114 Diagnostic Code 7301. b. The examiner should specifically state whether the Veteran has moderately severe adhesions and whether there is evidence of partial obstruction manifested by delayed motility of barium meal and less frequent and less prolonged episodes of pain. Id. The examiner must provide a complete rationale for all opinions rendered with references to the evidence of record. In June 2012, the requested VA examination was performed, which included a review of the claims file. The Veteran's history was reviewed. It was noted that during service, the Veteran suffered a ruptured appendix and subsequent peritonitis. The Veteran underwent emergency surgery and an appendectomy. The examiner noted that since that time, the Veteran reported suffering intermittent pain. He underwent a cholecystectomy in 1971 due to a ruptured gallbladder. He also underwent a Whipple procedure for benign pancreatic tumor in 1997. The Veteran related that his condition had become more serious since 1997 and the Whipple procedure. He reported that he had to eat small portions, monitor his fat intact due to constant diarrhea, particularly with heavy carbohydrate intact. In addition, the Veteran related that since the Whipple procedure, he had experienced pain going down both his flanks to his scrotom. The pain was an 8 out of 10 on a pain scale of 1 to 10 with 10 being worse. The Veteran related that he was employed as a semi-truck driver. He indicated that he could not due much lifting. He also stated that he did not have nausea or vomiting, but had stomach pain which lasted most of the day. However, the Veteran later indicated that he did have pain as well as nausea. With regard to the severity of the symptoms, the examiner stated that considering less prolonged episodes of pain, less frequent episodes of pain, a partial obstruction manifested by delayed motility of barium meal, and moderately severe manifestations, the Veteran had less frequent episodes of pain. Also with consideration of manifestations caused abdominal distention, occasional episodes of constipation (perhaps alternating with diarrhea), occasional episodes of nausea, occasional episodes of colic pain, pulling pain on attempting work or aggravated by movements of the body, or moderate manifestations, the Veteran had occasional episodes of colic pain and nausea. Abdominal testing was performed. A small bowel series and urinary film of the abdomen revealed a normal gas pattern. There was a moderate amount of stool in the ascending and descending colon. A dilated loop of small bowel in the midportion of the abdomen was also seen. The barium testing was also performed. The results showed that there was a suggestion of gastrojejunostomy. A rapid filling of jejunum was noted. The visualized jejunum and ileum showed a normal mucosal patter. There was no evidence of obstruction, dilation, sprue, or diverticulosis. The terminal ileum was identified and spotted and showed no definite evidence of Crohn's disease. The impression was no major abnormality of the small bowel. There was normal transit time of close to one hour. There was a suggestion of previous gastrojejunostomy. There was no evidence of inflammatory bowel disease. The examiner concluded that the Veteran had a normal barium study, showing no delay in barium. The examiner opined that the Veteran did not suffer from adhesions at the present time and did not have mechanical obstruction of his colon at the present time. The Whipple's procedure was noted by the examiner to cause the Veteran significant pain. The examiner stated that the peritoneal disability did not impact the Veteran's ability to work. The overall examination reports as well as lay complaints of the Veteran indicate that the Veteran has reported some pain, nausea, diarrhea, and constipation due to his peritoneal condition. The Board notes that while a VA CT was not performed, as noted, this could not be accomplished safely due to concerns over radiation exposure. However, there are two private CTs of record. These private CT tests did not reveal adhesions and the barium meal testing did not reveal adhesions or obstruction. Further, on the recent examination, performed for the purpose of addressing the deficiencies of past examinations and undertaken to include the appropriate abdominal tests, concluded that the Veteran had less frequent episodes of pain, not moderately severe or worse manifestations. Also the examiner concluded that the Veteran had occasional episodes of colic pain and nausea, not reaching the level of moderate manifestations. The abdominal testing was performed, including a small bowel series and urinary film as well as barium meal testing and yielded results reflecting a normal barium study. There was no delay in barium and the testing indicated that the Veteran does not suffer from adhesions at the present time or have mechanical obstruction of his colon at the present time. Thus, while the Veteran has pain, nausea, diarrhea, and constipation due to his peritoneal condition as well as due to his prior Whipple procedure, physical examination and the appropriate testing shows that he does not have adhesions or obstruction. A 10 percent rating contemplates pulling pain on attempting work or aggravated by movements of the body, or occasional episodes of colic pain, nausea, constipation (perhaps alternating with diarrhea) or abdominal distension. The Veteran's symptoms fall squarely under these described manifestations. Conversely, the 30 percent rating contemplates moderately severe adhesions of the peritoneum with partial obstruction manifested by delayed motility of barium meal and less frequent and less prolonged episodes of pain than the 50 percent rating which contemplates severe adhesions of the peritoneum with definite partial obstruction shown by X-ray, and with frequent and prolonged episodes of severe colic distension, nausea or vomiting, following severe peritonitis, ruptured appendix, perforated ulcer, or operation with drainage. The Veteran does not have the criteria described for the 30 or 50 percent rating. The specific tests showed no obstruction or adhesions at this time. The VA examination reports uniformly show no severe impairment. The most recent report resolved any ambiguity regarding whether there is moderately severe impairment, concluding that there is no moderately severe impairment. The Veteran is certainly competent to report pain and gastrointestinal symptoms. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). However, this case was remanded numerous times since there are complex questions regarding the nature of his service-connected disability, since certain medical tests were in order, since there is nonservice-connected disability which plays an etiological role regarding the claimed symptoms which are common to the residuals of the Whipple procedure and the peritoneal disability, and since a medical professional's opinion was required. The VA examiner's opinion is more probative than the Veteran's personal assertions because the examiner is an expert, examined the Veteran, reviewing his history, performed the necessary testing, and provided rationale for the conclusions reached. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is factually accurate, fully articulated, and has sound reasoning for the conclusion.) The Board has also considered whether any of the other diagnostic codes pertaining to abdominal impairment should be applied, but finds that they are relevant to other specifically diagnosed gastrointestinal disorders, which the Veteran does not have and which are not service-connected. The most similar disability, stomach injury, which could serve for an analogous rating, is also rated under Diagnostic Code 7301. As such, the Veteran's disability is properly rated under Diagnostic Code 7301. Further, although the Veteran and his representative have requested an independent medical expert opinion in the past, the Board finds that the VA examination, particularly the most recent examination, is adequate to rate the Veteran because there are sufficient clinical findings, appropriate tests, and the inquiries posed by the Court and in the record are addressed. In determining whether a higher rating is warranted for service-connected disability, VA must determine whether the evidence supports the Veteran's claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the preponderance of the evidence is against a rating in excess of 10 percent. In considering the claim for a higher rating, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extra-schedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). In a recent case, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the C&P Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The symptoms associated with the Veteran's peritoneal disability are not shown to cause any impairment that is not already contemplated by the relevant diagnostic code, as cited above, and the Board finds that the rating criteria reasonably describe his disability. There have not been frequent periods of hospitalization, the Veteran is employed, and the most recent VA examination report noted that the Veteran's employment was not impacted. Therefore, referral for consideration of an extraschedular rating is not warranted. ORDER Entitlement to an increased rating in excess of 10 percent for peritoneal adhesions associated with a psychophysiological gastrointestinal reaction, is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs