Citation Nr: 1336320 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 07-35 187 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to an initial compensable rating for angiolipoma of the right adrenal gland. 2. Entitlement to an initial compensable rating for echogenic mass in the liver. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran had active service from June 1973 to January 1982. This matter came before the Board of Veterans' Appeals (Board) on appeal from August 2006 and February 2008 decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. A hearing before the undersigned Acting Veterans Law Judge was held at the RO in August 2010. The claim was remanded in November 2010 for further development. FINDINGS OF FACT 1. The angiolipoma of the right adrenal gland has not resulted in endocrinal abnormality or symptomatology. 2. The echogenic mass in the liver is not productive of symptomatology. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for angiolipoma of the right adrenal gland have not been met. 38 U.S.C.A. § 1155 (West 2002) 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.118, DC 7915 (2013). 2. The criteria for a compensable rating for echogenic mass in the liver have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.114, DC 7344-7345 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper VCAA notice must inform the claimant of any information and 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, March 2006 and June 2007 letters, sent prior to the initial August 2006 and February 2008 rating decisions, advised the Veteran of the evidence and information necessary to substantiate his increased rating claims, as well as his and VA's respective responsibilities in obtaining such evidence and information. The letters also advised the Veteran of the evidence and information necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. Relevant to the duty to assist, the service treatment records and VA treatment records have been obtained and considered. The Board has also reviewed the Veteran's paperless Virtual VA claims file and has noted that there are no additional documents in the Virtual VA file not already contained in the paper claims file. The Veteran has not identified any additional, outstanding records necessary to decide his pending appeal. The Veteran has also received VA examinations with respect to both increased rating claims throughout the appeal period, most recently in 2011. He has not stated that his disabilities have worsened since that examination, and a review of the VA examinations of record reflect that they are adequate to decide the Veteran's claims under the rating criteria. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the hearing officer who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the undersigned identified the issues on appeal. The Veteran's representative solicited testimony that indicated that the Veteran is aware of the evidence necessary to substantiate the claims by establishing the nature and severity of his symptoms. The Board then remanded the claims for additional development and adjudicative action based, in part, on the Veteran's testimony. The Bryant requirements were thus met. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claims. II. Analysis Ratings for service-connected disabilities are determined by comparing the veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4 (2012). When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Angiolipoma of the Right Adrenal Gland The Veteran contends that the angiolipoma of the right adrenal gland is manifested by chronic pain and nausea. He has also reported dizziness and weight changes. For clarification purposes, the Board notes that service connection is separately in effect for "angiolipomas, recurrent, status post removal with residual scars." The rating for that condition is not on appeal; this appeal is limited to the angiolipoma of the right adrenal gland. Therefore, the Board will analyze that claim only, apart from his other service-connected lipomas. An April 2006 computerized tomography (CT) scan of the abdomen revealed a small low-density lesion in the right adrenal consistent with myeliolipoma or lipoma. The record indicates that the Veteran was not undergoing any treatment for his lipomas, to include that on the right adrenal gland. March 2007 and March 2009 CT scans showed normal adrenal gland. On January 2011 VA examination, the VA examiner summarized the file, noting that although the radiologist interpreted the April 2006 CT scan as showing a possible lipoma or myolipoma of the right adrenal gland, the lesion was too small to actually characterize and repeat CT scans in March 2007 and March 2009 showed normal adrenal glands. After examination and review of the record, the examiner determined that there was insufficient clinical and radiographic evidence of a right adrenal gland mass of any type. The examiner explained that the right adrenal gland was normal, as shown by CT scans in 2007 and 2009 and the lack of any type of endocrine abnormality or condition. The Veteran's service-connected disability is rated under Diagnostic Code 7915. Diagnostic Code 7915 instructs that benign neoplasms of any specified part of the endocrine system are to be rated as residuals of endocrine dysfunction. 38 C.F.R. § 4.119; 7915. However, the medical evidence demonstrates that the Veteran does not suffer from a endocrine disability, as clarified on VA examination in 2011. Thus, a compensable rating is not warranted on that basis. The Board has considered whether a compensable rating is warranted under an alternate diagnostic code, but finds none is applicable. The medical evidence does not suggest that the mass, which has not been shown since the April 2006 CT scan, has resulted in any symptoms during the appellate period, to include tenderness at the site of the right adrenal gland. In this regard, the Board notes that the medical evidence generally attributes the reported symptoms to distinct conditions. Furthermore, there is no evidence, to include allegation, that the mass was removed; as such, there is no associated scarring to consider. Although the Veteran believes he has symptoms due to the right adrenal angiolipoma, the record does not suggest the Veteran possesses the specialized knowledge necessary to render him competent to make that determination. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Thus, the Board finds the Veteran's statements are not competent evidence which would warrant a compensable rating. Echogenic Mass in the Liver The Veteran contends that his echogenic mass in the liver causes him to experience abdominal pain and loss of weight. Turning to the evidence of record, in February 2006, the Veteran reported a history of chronic abdominal pain. He also reported a history of a loss of 20 pounds since September 2005 because of poor appetite. The examiner noted that the records showed only an eight-pound weight change. An ultrasound showed an echogenic lesion in the liver whose appearance was most consistent with hemangioma. The Veteran was assessed with abdominal pain of no clear etiology. The record notes that it was unlikely that the liver hemangioma was contributing to pain. An April 2006 VA treatment record reflects the Veteran's history of abdominal pain, which the examining nurse practitioner found was possibly related to the angiolipoma on the liver. A subsequent April 2006 VA CT scan of the abdomen showed a small liver hypodenisty which "may represent hemangioma." A May 2006 VA treatment record reflects the Veteran's history of persistent abdominal pain. The record notes that the Veteran had normal benign exam and labs. Subsequent May 2006 VA treatment records indicate that the abdominal pain was of unclear etiology, possibly due to gastritis or musculoskeletal pain. On July 2006 VA examination, the Veteran denied fever or chills but reported occasional nausea and very rare vomiting. He reported some right upper quadrant pain which felt like a twisting sensation. He also reported weight loss since September 2005, explaining that his weight had dropped from 154 to 127 pounds but was now back up to 139 pounds. The record indicates that the etiology of the weight reduction was unknown. The record notes the finding of possible hemangioma of the liver on ultrasound and CT scan of the abdomen. The examiner reported an inability to relate the Veteran's reported weight loss to his liver hemangioma or any other identified cause. The examiner diagnosed echogenic mass in the liver, probable hemangioma. Subsequent treatment records reflect complaints of abdominal pain. The records indicate that there was no recent change in weight. Radiographic imaging consistently reveals stable benign hepatic lesion. Testing consistently reveals no evidence of anemia, normal functioning liver, and normal urine tests. The records document that the source of the reported abdominal pain was unknown, though it was believed to be possibly musculoskeletal. On January 2011 VA examination, the Veteran's history of having a small echogenic lesion was reported, as described above. The Veteran reported having right upper quadrant pain that was brief, daily. There was no nausea or vomiting. There was no weight loss, fatigue, or incapacitating episodes related to the lesion. The assessment was a small, stable hemangioma of the right lobe of the liver. The examiner determined that the reported right upper quadrant pain was not caused by or a result of the small hemangioma of the liver. The examiner further determined that the hemangioma of the liver was asymptomatic. The Veteran's disability is rated under Diagnostic Codes 7344-7345. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2013). Under Diagnostic Code 7344, benign neoplasms are directed to be rated under the appropriate code. Under Diagnostic Code 7345, chronic liver disease that is nonsymptomatic is rated as noncompensable. Chronic liver disease with intermittent fatigue, malaise, and anorexia, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least one week, but less than two weeks, during the past 12-month period, is rated 10 percent disabling. 38 C.F.R. § 4.114, Code 7345. Note (1) to Diagnostic Code 7345 provides that sequelae, such as cirrhosis or malignancy of the liver, is to be rated under an appropriate diagnostic code, but not to use the same signs and symptoms as the basis for rating under Diagnostic Code 7354 and under a diagnostic code for sequelae. Note (2) to Diagnostic Code 7345 defines an "incapacitating episode" as "a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician." 38 C.F.R. § 4.114. In this case, the Board finds no symptoms upon which to compensably rate the Veteran's disability. Although the Veteran has complained of upper quadrant pain and tightness, previous weight loss, and some nausea, those symptoms have not been medically related to his echogenic mass in the liver and in fact it has been affirmatively stated that those symptoms could not be concluded to be so related. Although the Veteran believes he has symptoms due to the liver mass, the record does not suggest the Veteran possesses the specialized knowledge necessary to render him competent to make that determination. Davidson v. Shinseki, 581 F.3d at 1316. Thus, the Board finds the Veteran's statements are not competent evidence which would warrant a compensable rating. In sum, after reviewing the evidence and the applicable rating criteria, the Board finds that a compensable rating is not warranted because the competent evidence indicates that the disability is nonsymptomatic. III. Other Considerations In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In this case, the Board finds that a claim for a TDIU was not expressly raised by the Veteran or reasonably raised by the record. In this regard, while the Veteran has not stated that his appealed disabilities interfere with his employment and has specifically denied such on VA examination. Therefore, the Board finds that the Veteran's angiolipomas of the right adrenal gland and echogenic mass in the liver do not render him unemployable. An extra-schedular disability rating is warranted if 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 application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under § 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Second, if the schedular evaluation does not contemplate the claimant'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 "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant'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 Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. Id. The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected angiolipoma of the right adrenal gland and echogenic mass in the liver with the established criteria found in the rating schedule. As discussed in detail previously, the Veteran's disabilities are fully addressed by the rating criteria under which each is rated. There are no symptoms attributed to either disability that are not addressed by the rating schedule. Therefore, the Board finds that rating criteria reasonably describes the Veteran's disability level and symptomatology for his service-connected disabilities. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). The Board has considered whether a higher rating might be warranted for any period of time during the pendency of this appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). However, the preponderance of the evidence is against the Veteran's claims for compensable ratings for angiolipomas of the right adrenal gland and echogenic mass in the liver at anytime during the appeal period, thus, the appeals are denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER A compensable rating for angiolipomas of the right adrenal gland is denied. A compensable rating for an echogenic mass in the liver is denied. ____________________________________________ N. SNYDER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs