Citation Nr: 1314986 Decision Date: 05/07/13 Archive Date: 05/15/13 DOCKET NO. 10-22 905 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a compensable initial rating for splenomegaly. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD H.J. Baucom, Associate Counsel INTRODUCTION The Veteran had active service from July 1971 to August 1971. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a July 2009 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Waco, Texas which granted service connection for splenomegaly (claimed as spleen problems) and assigned a noncompensable disability rating. In February 2013 a videoconference Board hearing was held before the undersigned; the transcript is of record. It appears that the issues of (1) service connection for a cardiovascular/heart condition secondary to the service connected splenomegaly and (2) total disability based on individual unemployability (TDIU) has been raised by the record, based on the Veteran's claim that he is unemployable due to his psychiatric disability, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. FINDING OF FACT There are no residuals related to the service connected splenomegaly at this time. CONCLUSION OF LAW The criteria for the assignment of a compensable initial rating for splenomegaly have not been met. 38 U.S.C.A. §§ 1155, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.7, 4.118 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found, however. This practice is known as "staged" ratings." Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Diagnostic Code 7707 for spleen, injury of, healed, is instructed to rate for any residuals. However, as there are no objective findings of any residuals related to the spleen, there are no residuals on which to base a compensable rating, therefore a compensable rating is not warranted. Regarding the issue of a disability that the Veteran believes is caused by his spleen problem, the Board will address this issue. At the Board hearing the Veteran testified that he felt that his high TGC level, which is caused by his spleen malfunction, has caused him to have a heart condition. He testified that as his spleen backs up, it causes his liver to back up, which causes a heart disability. Specifically he contends that he has hepatosplenomegaly (enlarged liver and spleen) due to his splenomegaly (enlarged spleen). The Veteran also contends that his spleen has caused his high cholesterol. The Veteran's contention that his splenomegaly has caused a heart disability, is referred to the RO for further development as a claim for secondary service connection, not as a residual of the spleen disability. Although the Veteran argues that these additional conditions are residuals of his splenomegaly, he is actually contending that these additional conditions are secondary service connected disabilities as his spleen condition has caused these additional conditions. He is not claiming any specific residuals of a healed spleen, for example ascites, jaundice, anemia, hematemesis, melena or easy bruisability. He is instead contending that the spleen problem has caused a completely separate disability not before the Board: a heart disability. In January 2012 a VA examination was conducted. The Veteran reported having an enlarged spleen in 1970 when he went to a hospital for unremitting nose bleed. At that time he had pain on the left side of the abdomen below his left rib cage. No other associated symptoms or signs such as ascites, jaundice, anemia, hematemesis, melena or easy bruisability. The Veteran strongly denies drinking a lot of alcohol. Denies any history of malaria, syphyllis, mononucleosis, endocarditis, hemolytic anemia etc. Currently except for left upper quadrant pain he denies any other complaints. The Veteran reported that his appetite is good and denies any weight loss. The examiner noted that he has been stable since the onset with no current treatment, providing evidence against this claim. Upon physical examination, the Veteran was noted to have an enlarged liver size with no evidence of ascites, normal liver consistency, no abdominal tenderness, no evidence of portal hypertension, no evidence of malnutrition, and no other signs of liver disease. The Veteran had an enlarged spleen; no ascities; no spider web; no jaundice and no palmar erythema. Further testing included a CT of the abdomen in 2005 which showed hepatosplenomegaly without focal hepatic or splenic lesions, an ultrasound of the abdomen in 2004 which showed fatty infiltration of liver and splenomegaly, a 2011 CAT scan of the abdomen which showed hepatosplenomegaly, and a liver function test which was normal. In response to the question of whether hypercholesterolemia, hypertriglyceridemia, hepatosplenomegaly are due to splenomegaly, the examiner stated no. The examiner reported that the Veteran was diagnosed with having idiopathic splenomegaly for at least 30 years which sometimes reduce his splenic size with use of antibiotic, and these findings were documented and shown by his CAT scan of the abdomen. He was noted to haveelevated cholesterol, triglycerides on his blood test which came down tremendously since initiation of therapy. An ultrasound of the adomen in 2004 showed fatty infiltation of the liver and splenomegaly. The examiner explained that the spleen functions mainly as graveyard for old blood cells especially for RBC and platelets and to produce lymphocytes to help the body fight infection. It does not produce cholesterol and triglycerides. Based on this information is the examiner opined that that the Veteran's hypercholesterolemia (high cholesterol), hypertriglyceridemia (high blood levels of triglycerides) and hepatosplenomegaly (enlarged liver and spleen) are less likely than not due to his service connected splenomegaly, providing more evidence against this claim. The examiner opined that his hypercholesterolemia and hypertriglyceridemia could be genetic if no other cause is found -- mainly due to type 11 hyperlipidemia by Frederickson classification. She also opined that his high triglycerides could be from drinking, which he strongly denies. The examiner explained that high triglycerides can cause a fatty liver as the fat cells invade the liver causing hepatomegaly and splenomegaly. The weight of the competent medical evidence is against a finding that hypercholesterolemia, hypertriglyceridemia, and/or hepatosplenomegaly are due to the service connected splenomegaly. In any event, it is important for the Veteran to understand that a test result (for example, a high triglycerides reading) is not a "disability" in and of itself. A test indicating high cholesterol indicates the potential for a problem that could occur without treatment, exercise, or a change in eating habits, not the disability itself. While high cholesterol may cause a cardiovascular problem, the high cholesterol itself is not a compensable disability for VA purposes. A compensable rating for the splenomegaly is not warranted even if the Board found some connection between the service connected disability and the test result indicating high cholesterol. Extraschedular The Board has considered Mittleider v. West, 11 Vet. App. 181 (1998), holding that the benefit of the doubt applies to determinations of whether a symptom should be attributed to a service-connected condition. The Veteran's service connected symptoms have been considered in connection with his claim for increased rating for splenomegaly. Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, a determination must be made as to whether the schedular criteria reasonably describe a veteran's disability level and symptomatology. Id. At 115. If the schedular rating criteria do reasonably describe a veteran's disability level and symptomatology, referral for extraschedular consideration is not required and the analysis stops. Id. If the schedular rating criteria do not reasonably describe a veteran's level of disability and symptomatology, a determination must be made as to whether an exceptional disability picture includes other related factors, such as marked interference with employment and frequent periods of hospitalization. Id. At 116. If an exceptional disability picture including such factors as marked interference with employment and frequent periods of hospitalization exists, the matter must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. The schedular rating criteria contemplate ratings based on residuals of a healed spleen. The Board finds that the schedular rating criteria in this case is adequate to rate the Veteran's splenomegaly. In the absence of evidence that the schedular rating criteria is inadequate to rate the Veteran's disability, the Board is not required to remand this case to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See also Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Notice and Assistance VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011). A June 2005 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained; he did not identify any additional private or VA treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Board has reviewed the Veteran's "Virtual VA" file. A VA examination was conducted in January 2012; the Veteran has not argued, and the record does not reflect, that this examination was inadequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The examinations were adequate as the examiners evaluated the Veteran's current disability level and provided findings to allow for proper application of the rating criteria. There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). ORDER A compensable initial rating for splenomegaly is denied. ______________________________________________ JOHN C. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs