Citation Nr: 1306070 Decision Date: 02/21/13 Archive Date: 02/27/13 DOCKET NO. 08-21 589 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial compensable evaluation for abdominal pain. 2. Entitlement to an increased evaluation on an extraschedular basis for abdominal pain. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1990 to May 1994. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which granted entitlement to service connection for abdominal pain and assigned a noncompensable evaluation effective October 1999. The Veteran testified at a Board hearing at the RO in Waco, Texas in September 2010. This transcript has been associated with the file. The case was brought before the Board most recently in March 2012, at which time the claim was remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of her appeal, to include obtaining private and VA treatment records and affording the Veteran a new VA examination. The Veteran's most recent VA treatment records were obtained and associated with the claims file. The Veteran was notified in March 2012 that she should return the release form to authorize the VA to obtain outstanding private treatment records. The Veteran did not return the form indicating there were additional private treatment records needed. The Veteran was afforded a VA examination in April 2012 for her abdominal pain. Therefore, the Board finds that there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). In an August 2002 Board decision the Veteran's claim of entitlement to service connection for constipation was denied. The Veteran did not appeal this decision and as such, this matter is not in appellate status. The issue of entitlement to an increased evaluation on an extraschedular basis for abdominal pain is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's abdominal pain is manifested by complaints of pain, nausea, vomiting, constipation, and heavy menstrual bleeding. CONCLUSION OF LAW The criteria for a compensable disability rating for abdominal pain have not been met at any point during the appeal period. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.116, Diagnostic Code 7629 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to review the entire record, the Board does not have to discuss each piece of evidence reviewed. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Here, prior to the initial rating decision in this matter, the Veteran was informed of the elements of service connection, given examples of the types of evidence the Veteran could submit in support of her claim, and provided notice of her and VA's respective responsibilities for obtaining such evidence. Therefore, the Board concludes that the duty to notify has been satisfied. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also Goodwin v. Peake, 22 Vet. App. 128, 136 (2008) (holding that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service- connection claim has been proven and thus section 5103(a) notice is no longer required because the purpose that the notice is intended to serve has been fulfilled). During the pendency of the appeal, the VCAA notice requirements were interpreted as follows. For an increased compensation claim, the veteran must be notified that she must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) (Vazquez-Flores I). The United States Court of Appeals for the Federal Circuit (Federal Circuit) subsequently held that the notice described in 38 U.S.C. § 5103(a) need not be veteran specific, i.e., it need not notify the veteran of alternative diagnostic codes, and that that the statutory scheme does not require 'daily life' evidence for proper claim adjudication. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (Vazquez-Flores II) (vacating and remanding in part Vazquez-Flores I). Most recently, the Court clarified that the notice must advise the veteran to submit evidence demonstrating the effect that the worsening of her disability has on her employment. Vazquez-Flores v. Shinseki, No. 05-0355, (U.S. Vet. App. October 22, 2010) (Vazquez-Flores III). The Veteran was notified of these changes in May 2008. The Veteran has not alleged that VA failed to comply with the notice requirements of the VCAA, and she was afforded a meaningful opportunity to participate effectively in the processing of her claim, and has in fact provided additional arguments at every stage. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The notice required by 38 U.S.C.A. § 5103(a) should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). That was done in this case. The Veteran's service treatment records and VA treatment records are in the file. As noted above, in March 2012 the Veteran was sent a release form to sign and return so the VA could obtain any additional outstanding private treatment records. The Veteran did not return the form or otherwise indicate there were outstanding private treatment records. As such, the Board finds the duty to assist with obtaining medical records has been satisfied. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a). The Veteran was afforded a VA medical examination most recently in April 2012 to determine the severity of her abdominal pain. This opinion was rendered by a medical professional following a thorough examination and interview of the Veteran and review of the claims file. The examiner obtained an accurate history. The examiner provided a detailed conclusion for the conclusions that were reached. There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disorder since she 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. VAOPGCPREC 11-95. Therefore, the Board finds that the examination is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the foregoing, all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Increased Rating Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). In Fenderson v. West, 12 Vet. App. 119 (1999), the Court held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. In Fenderson, the Court also discussed the concept of the "staging" of ratings, finding that in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a Veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's abdominal pain is currently rated under Diagnostic Code 38 C.F.R. § 4.116, 7299-7629. See 38 C.F.R. § 4.27 (hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen). Under Diagnostic Code 7629 a 10 percent evaluation is warranted for endometriosis with pelvic pain or heavy or irregular bleeding requiring continuous treatment for control. A 30 percent evaluation is warranted for endometriosis with pelvic pain or heavy or irregular bleeding not controlled by treatment. A 50 percent evaluation is warranted for endometriosis with lesions involving bowel or bladder confirmed by laparoscopy, pelvic pain or heavy or irregular bleeding not controlled by treatment, and bowel or bladder symptoms. Id. A Note to this Diagnostic Code states that the diagnosis of endometriosis must be substantiated by laparoscopy. Id. The Veteran was afforded a VA examination in March 2000. She reported that she began having abdominal pain and constipation in service and that she was currently being treated for these conditions at the VA Medical Center in Houston. The examiner reviewed the Veteran's post service treatment records and noted the Veteran has a past medical history that included mild diverticulosis, ovarian cyst, constipation, abdominal, and pelvic pain. She was diagnosed with constipation. An April 2000 VA gynecological examination was normal with no evidence of ovarian cysts. In a May 2004 VA treatment record the Veteran stated she had nausea and vomiting, which generally occurred before her menstrual cycle. It was also noted her past medical history included abdominal pain and pelvic pain. The Veteran was afforded a VA examination in June 2006. The Veteran denied any problems with constipation or bowel movements prior to 1990. The Veteran reported constipation with abdominal pain in the lower abdomen. The examiner noted the Veteran was a very poor historian, vague, and unable to answer most questions with much clarity. On examination the Veteran had a completely normal abdomen. The examiner opined the Veteran's abdominal pain was likely functional in nature. There was no evidence of other organic gastrointestinal abnormalities to explain her symptoms. The examiner indicated that he had reviewed the claims file in August 2006, but he provided no addendum opinion. In a June 2006 VA gynecological examination the Veteran reported that she had pelvic pain that had been treated successfully with oral contraceptives. The plan was to continue with her current medication to help control painful menses. In a July 2007 VA treatment record the Veteran was seen with mid-abdominal pain which started 1 day earlier. She had also vomited 4 times that morning. She was diagnosed with abdominal pain, irritable bowel syndrome, and gastroesophageal syndrome (GERD). An August 2007 colonoscopy was normal. The Veteran was also afforded a VA examination in December 2008. She reported a history of abdominal pain that began in service. She stated that she took between 4-6 breaks a day due to her lower abdominal pain. A pelvic ultrasound showed that her uterus was normal in size with no evidence of ovarian masses or cysts. She was diagnosed with lower abdominal condition of an unknown etiology. In a June 2009 VA treatment record the Veteran reported vomiting and diarrhea that had existed for 1 day, but that it seemed to be resolving. A March 2011 CT scan showed that the Veteran had uterine fibroids. The results were otherwise unremarkable. See also August 2007 VA treatment record noting that uterine fibroids were probable. The Veteran's most recent VA examination was in April 2012. At this examination the Veteran reported sharp, intense, constant abdominal pain that could last up to several hours and had gotten worse over the years. She also indicated nausea and vomiting could occur. She also stated that her periods had become heavier and more painful than they used to be. The Veteran did not remember having laparoscopy done at any time. The April 2012 examiner noted that an August 1999 CT scan showed a normal uterus, ovaries, and tubes. An ultrasound in September 2007 showed multiple uterine fibroids. The examiner offered the following diagnoses: leiomyoma uteri, dysmenorrhea, menorrhagia, dyspareunia, and abdominal pain. He found no evidence of endometriosis. Ultimately the examiner acknowledged the Veteran had abdominal pain, and a tender uterus. The Veteran also had painful, heavy periods with nausea and vomiting. He opined it may be related to her fibroids. As noted above, although the Veteran has complained of ongoing problems with her abdominal pain, there is no evidence which indicated that she should be awarded a compensable evaluation at any point during the appeals period. In this regard, there is no competent evidence that the Veteran has been diagnosed with endometriosis that is causing pelvic pain or heavy and irregular bleeding requiring continuous treatment. 38 C.F.R. § 4.116, Diagnostic Code 7629. The Veteran reported a past medical history to include endometriosis. See August 2012 VA treatment record. However, as noted in the April 2012 VA examination report, there is no evidence that laparoscopy has been done or that the Veteran has been diagnosed with endometriosis. The Board has considered the requirement of 38 C.F.R. § 4.3 to resolve any reasonable doubt regarding the level of the Veteran's disability in her favor. The Board concludes that the objective medical evidence and the Veteran's statements regarding her symptomatology show disability that more nearly approximates that which warrants the assignment of a noncompensable rating. See 38 C.F.R. § 4.7. The Board has also considered whether a higher evaluation would be warranted under additional diagnostic codes. The March 2012 Board Remand asked the VA examiner to consider whether a rating for adhesions of the peritoneum, irritable colon syndrome, or ulcerative colitis might be more appropriate. The April 2012 VA examiner stated that there was no evidence of peritoneum adhesions, which could only be identified through laparoscopy. He also stated there was no evidence of ulcerative colitis or anything similar to that in her workup. As such, there is no evidence that a different gynecological or gastrointestinal diagnostic code would warrant a compensable evaluation. The Board acknowledges the Veteran's contentions that her abdominal pain warrants a compensable evaluation. See e.g, September 2010 Board hearing transcript. However, in determining the actual degree of disability, an objective examination is more probative of the degree of the Veteran's impairment. Furthermore, the opinions and observations of the Veteran alone cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.116 with respect to determining the severity of her abdominal pain. See Moray v. Brown, 2 Vet. App. 211, 214 (1993); 38 C.F.R. § 3.159(a)(1) and (2) (2012). In light of the above, the Board finds that the Veteran is not entitled to a compensable evaluation at any point during the appeal period. See Fenderson, supra. The Board has considered whether the benefit of the doubt rule applies the Veteran's appeal. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). However, a preponderance of the evidence is against a higher evaluation; thus, this rule does not apply and the claim for an increased evaluation must be denied. ORDER Entitlement to an initial compensable evaluation for abdominal pain is denied. REMAND The Board has also considered whether an extraschedular evaluation is warranted for the Veteran's abdominal pain. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1) (2012). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Only after the Director has determined whether an extraschedular evaluation is warranted does the Board have jurisdiction to decide the merits of the extraschedular aspect of the claims. An extraschedular rating under 38 C.F.R. § 3.321(b)(1), as discussed above, is based on the fact that the schedular ratings are inadequate to compensate for the average impairment of earning capacity due to the Veteran's disability. Exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, are required. In this case, the evidence reflects that the Veteran testified her abdominal pain caused her to miss work by either calling in due to stomach pain, or having to leave work when the abdominal pain began at work. See September 2010 Board hearing transcript. The Veteran also testified that frequently she will end up stooped over a chair or on the floor because of the abdominal pain she is experiencing. As such, the Board finds that the extraschedular portion of Veteran's claim for an increased evaluation for her abdominal pain must be remanded for referral to the Chief Benefits Director or the Director, Compensation and Pension Service for consideration of an extraschedular evaluation. 38 C.F.R. § 3.321(b)(1) . Accordingly, the case is REMANDED for the following action: 1. Submit the increased evaluation on an extraschedular basis for abdominal pain to the Under Secretary for Benefits or Director of Compensation and Pension Service for an extraschedular evaluation under 38 C.F.R. § 3.321(b). 2. After completing the above, and any other development deemed necessary, the AOJ should readjudicate the claim. If the benefits sought on appeal are not granted, the Veteran and her representative should be furnished with a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). (CONTINUED ON NEXT PAGE) 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. 2012). ______________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs