Citation Nr: 1331355	
Decision Date: 09/27/13    Archive Date: 10/01/13

DOCKET NO.  08-21 589	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to an initial compensable evaluation for abdominal pain on an extraschedular basis.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Christopher Murray, Counsel

INTRODUCTION

The Veteran had active military service from May 1990 to May 1994.

This case comes before the Board of Veterans' Appeals (Board) on appeal of a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which granted service connection for abdominal pain as due to an undiagnosed illness and assigned a noncompensable evaluation effective October 1999.

The Veteran testified before the Board at a September 2010 hearing conducted at the RO.  A transcript of the hearing is of record.

This case was brought before the Board in February 2013, at which time the denied an increased evaluation on a schedular basis and remanded the claim for an increased evaluation on an extraschedular basis for additional development.  The requested development having been completed, the case is once again before the Board for appellate consideration of the issue on appeal.


FINDING OF FACT

The Veteran's service-connected abdominal pain by itself does not result in marked interference with employment or frequent hospitalization; manifestations of the disability, including occasional pain, nausea and vomiting with frequent constipation, are contemplated by the applicable schedular rating criteria.


CONCLUSION OF LAW

The criteria for a compensable evaluation on an extraschedular basis for abdominal pain have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1-4.10, 4.116, Diagnostic Code 7629 (2012).

REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

VA's duty to notify has been satisfied through a number of letters sent to the appellant throughout the course of the appeal that fully addressed all notice elements.  These letters informed the appellant of what evidence was required to substantiate her claim, and of the appellant's and VA's respective duties for obtaining evidence.  The appellant been afforded a meaningful opportunity to participate effectively in the processing of her claim and given ample time to respond.

In light of the above, the Board finds that all notices required by VCAA and implementing regulations were furnished to the Veteran and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters.

VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2012).

Service treatment records are associated with claims file.  All post-service VA and private treatment records identified by the Veteran have also been obtained.  She has not identified any additional records that should be obtained prior to a Board decision.  Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied.  The Veteran has been afforded a number of VA examinations to address the severity of her service-connected disability.  See 38 U.S.C.A. § 5103A(d) ; see also 38 C.F.R. § 3.159 (c)(4) (2012); Wells v. Principi, 326 F. 3d 1381 (Fed. Cir. 2003).  These VA examinations are adequate for the purposes of evaluating the Veteran's disability, as they involved a review of the Veteran's pertinent medical history as well as a clinical evaluation of the Veteran, and provides an adequate discussion of relevant symptomatology.  See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).

As noted above, the instant claim was previously remanded by the Board in February 2013.  Specifically, the Board instructed that the Veteran's claim be forwarded for extraschedular consideration.  This action was accomplished in July 2013.  There has been substantial compliance with the prior remand, and adjudication of the Veteran's claim may proceed.  See generally Stegall v. West, 11 Vet. App. 268, 271 (1998).

In light of the foregoing, the Board is satisfied that 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.

Analysis

The Veteran asserts entitlement to a compensable evaluation for abdominal pain, service-connected on the basis of an undiagnosed disability.  See November 2006 rating decision.  Initially, the Board observes that in a February 2013 Board decision, a compensable evaluation was denied on a schedular basis under applicable rating criteria.  See 38 C.F.R. § 4.116, Diagnostic Code 7629 (2012).

An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards.  38 C.F.R. § 3.321(b)(1).  An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization so as to render impracticable the application of the regular schedular standards.  See Fanning v. Brown, 4 Vet. App. 225, 229 (1993).  The Board, cannot assign an evaluation on an extraschedular basis in the first instance.  See Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996).  However, VA, to include the Board, may decide the propriety of an extraschedular evaluation if VA's Under Secretary for Benefits or Director of Compensation and Pension (C&P) Service reaches a negative determination.  Floyd, 9 Vet. App. at 88; see also Anderson v. Shinseki, 22 Vet. App. 423 (2009).

In the February 2013 remand, the Board instructed that the Veteran's claim be forwarded to the Director of VA's C&P Service for consideration of an extraschedular evaluation.  Following a review of the claims file, including the Veteran's pertinent medical history and multiple VA examination reports, the Director of C&P Service determined that an extraschedular evaluation is not warranted.  Given this threshold determination, the Board may now properly consider entitlement to an extraschedular evaluation on the merits.

The Board must consider all of the pertinent medical evidence as well as the Veteran's individual circumstances in the determination of whether an extraschedular rating is warranted.

In considering the medical evidence of record, the Board observes the Veteran's reports of abdominal pain, particularly the severity of this pain, are somewhat varied over the course of the appeal.  For instance, a May 2004 VA treatment record notes the Veteran reported a past history of abdominal and pelvic pain with nausea and vomiting, usually occurring before her menstrual cycle.  At a June 2006 VA examination, she reported constipation and abdominal pain in the lower abdomen.  In July 2007, the Veteran was treated for mid-abdominal pain that had begun one day prior.  She reported she had vomited four times that morning and was diagnosed with abdominal pain, irritable bowel syndrome and gastroesophageal reflux disease (GERD).  An August 2007 colonoscopy was normal.  

In July 2009, the Veteran reported vomiting and diarrhea that had existed for one day but that seemed to be resolving.  A March 2011 CT scan showed uterine fibroids, but otherwise unremarkable results.

The Veteran's most recent examination was provided in April 2012.  At this examination, she reported sharp, intense and 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.  The VA examiner noted the Veteran's subjective complaints of "debilitating" constipation and abdominal pain.  The examiner noted that the Veteran suffers from "very bad, very painful" periods, which can in a sense be incapacitating for up to a week per month.  The VA examiner noted that the Veteran "has legitimate gynecological issues, fibroids, and heavy and painful periods, which...influences her ability to function and to enjoy life." 

There is little indication the Veteran has complained of abdominal pain, much less debilitating pain causing significant interference with work, since the April 2012 VA examination.  Significantly, an October 2012 VA mental health examination report indicates the Veteran's employment was affected by her psychiatric disability and migraine headaches along with low back pain.  No mention of debilitating abdominal pain, or abdominal pain of any severity, was noted.  Finally, a May 2013 VA treatment record notes the Veteran then did not experience abdominal pain, constipation or diarrhea, and an August 2013 VA gynecology consult specifically finds her abdominal pain is not related to her gynecological issues.

Ultimately, the Board must determine whether the Veteran's service-connected abdominal pain presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  See Thun v. Peake, 22 Vet. App. 111 (2008).  Based on the evidence in its entirety, the Board in its capacity as a finder of fact finds that the manifestations of the Veteran's disability are adequately contemplated by the applicable rating criteria.  See Elkins v. Gober, 229 F.3d 1369, 1377 (Fed. Cir. 2000) ("[f]act-finding in veterans cases is to be done by the expert BVA [Board]...").  Relevant diagnostic criteria consider the Veteran's subjective complaints of pain, constipation and nausea.

To the extent the Veteran reported to the April 2012 VA examiner that her abdominal pain and constipation are debilitating and prevent her from working, as discussed above, such complaints are not supported by the medical evidence of record.  In this regard, the record clearly supports a finding that her difficulty in finding and maintaining employment is due to disabilities other than abdominal pain.  Further, while the VA examiner noted the Veteran's heavy periods result in great pain and incapacitation, and interfere with her daily functioning and enjoyment of life, the Board again observes that VA treatment records specifically find the Veteran's service-connected abdominal pain is not related to these non-service connected gynecological issues.  Therefore, this opinion by the April 2012 VA examiner does not constitute "marked interference with employment" due to service-connected abdominal pain.

As such, for the reasons discussed above, the Board finds that an extraschedular evaluation pursuant to 38 C.F.R. § 3.321(b)(1) (2012) for abdominal pain is not warranted.  


ORDER

An extraschedular compensable evaluation for abdominal pain is denied.



____________________________________________
KELLI A. KORDICH
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs