Citation Nr: 1621545 Decision Date: 05/31/16 Archive Date: 06/08/16 DOCKET NO. 10-11 065 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to service connection for depression, claimed as secondary to service-connected disability. 2. Entitlement to a rating higher than 30 percent for splenectomy. 3. Entitlement to a rating higher than 10 percent for residuals of a right ear injury prior to May 9, 2014, and higher than 30 percent as of May 9, 2014. 4. Entitlement to a rating higher than 10 percent for pancreatic pseudocyst, status-post surgical drainage. 5. Entitlement to a compensable rating for residuals of pneumothorax. 6. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to July 7, 2011. ATTORNEY FOR THE BOARD S. B. Mays, Counsel INTRODUCTION The Veteran served on active duty from August 1983 to June 1987. This matter is before the Board of Veterans' Appeals (Board) on appeal from October 2008 and December 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. A July 2013 rating decision granted entitlement to TDIU, effective July 7, 2011. That award represents a partial grant of the benefit sought because the benefit was not awarded for the entire period that the claim was pending. While the Veteran has subsequently filed a notice of disagreement to the effective date of July 7, 2011, the Board finds that the claim for TDIU prior to July 7, 2011, remains pending as the Veteran perfected an appeal of the denial and the total benefit sought was not granted. AB v. Brown, 6 Vet. App. 35 (1993). The Board notes that a May 2016 rating decision has proposed to terminate TDIU. The issues of entitlement to increased ratings for pancreatic pseudocyst drainage scar, residuals of pneumothorax, and splenectomy, and entitlement to TDIU prior to July 7, 2011, are REMANDED to the Agency of Original Jurisdiction. The April 2014 VA scar examination report raises the issue of entitlement to service connection for scars on the left wrist, left elbow, and abdomen secondary to in-service motor vehicle accident. The Board does not have jurisdiction of those issues, and they are referred the Agency of Original Jurisdiction for the appropriate action. FINDINGS OF FACT 1. From the beginning of the appeal period, the Veteran's service connected right ear injury has resulted in scarring with visible tissue loss and either gross distortion or asymmetry of the auricles. 2. Resolving all doubt in the Veteran's favor, the currently diagnosed depression is related to the service-connected splenectomy. CONCLUSIONS OF LAW 1. Since the beginning of the appeal period, the criteria for a 30 percent rating, but not higher, for a right ear scar have been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321, 4.118, Diagnostic Code (DC) 7800 (2015). 2. The criteria to establish service connection for depression, secondary to service-connected splenectomy, are met. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). As to the increased rating claim for residuals of right ear injury, VA's duty to notify was satisfied by a March 2009 letter. 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA's duty to assist the Veteran in the development of a claim has also been satisfied. The Veteran's service medical records and VA and private medical records have been obtained and considered. During the applicable appeal period, the Veteran was provided a March 2009 VA examination and the findings are adequate to decide the right ear scar claim. The Board finds that all relevant facts have been properly developed, and all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claims. VA's duty to notify and assist the Veteran has been satisfied. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. § 3.303(a) (2015). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Additionally, service connection may be granted, on a secondary basis, for a disability which is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310 (2015). Similarly, any increase in severity of a non-service-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the non-service-connected disease, will be service-connected. Allen v. Brown, 7 Vet. App. 439 (1995). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2015). The Veteran in this case seeks service connection for a psychiatric disability, claimed as secondary to a service-connected splenectomy. During active service in Germany, the Veteran was involved in a motor vehicle accident (MVA) and sustained multiple injuries, to include fractured ribs, a pneumothorax, ruptured spleen, and right ear injury. During the hospital admission, she underwent a splenectomy and right ear repair, and a chest tube was inserted. She separated from service in 1987. In 2000, the Veteran underwent emergency surgery due to acute abdominal pain with nausea and vomiting. That surgery found a bowel obstruction due to multiple adhesions and a large pancreatic pseudocyst which was medically associated to the service-connected splenectomy. In January 2001, she underwent resection of the pancreatic pseudocyst. In June 2002, the Veteran was seen by a VA Primary Care Clinic and assessed with depression and anxiety situation versus life change. She was referred for a psychiatric evaluation for medication or therapy. VA psychology and psychiatric consultation notes dated in August 2002 show the Veteran's report of missing too much work due to being sick all the time. In describing the onset of the depression symptoms, she referred to the MVA she had in service. In describing the Veteran's history, the VA psychiatrist noted that the Veteran had at least a one year history of depression against a background of multiple medical problems and surgical procedures. The assessment was severe major depressive disorder. During a VA psychology consultation conducted in March 2007, the Veteran continued complaints of a depressed and stressed mood. The depression diagnosis was continued. Under the Axis IV diagnosis, the examiner noted "medical problems from previous car accident." She was referred for a mental health evaluation and group therapy after displaying significant signs of depression. At a May 2008 VA examination, the examiner found that it was more likely than not that the Veteran's claimed depression was secondary to her splenectomy, noting that she was clearly depressed and her medical history, complications, and numerous surgeries clearly had an impact on her depression and mood. In the same opinion, the examiner stated that any comment or statement of a relationship of her depression to splenectomy would be purely speculative. As a result of the in-service MVA, service connection is currently in effect for splenectomy, and associated pancreatitis, pancreatic pseudocyst, pneumothorax, and a right ear injury. Diabetes is also service connected as secondary to pancreatitis. After having reviewed all relevant evidence, the Board finds service connection is warranted for a psychiatric disability, diagnosed as depression. The medical evidence confirms a current diagnosis of a mood disorder, namely depression, such as in the VA treatment notes and a May 2008 VA examination report. In addition, the Veteran, as a layperson, is competent to report her observable psychiatric symptoms, such as a depressed mood. The Board notes that the Veteran may also be competent on a variety of matters concerning the nature and cause of disability. Jandreau v. Shinseki, 492 F.3d 1372 (Fed. Cir. 2007). She is competent to report feeling depressed after undergoing the splenectomy in service and dealing with its residuals and complications, and the Board has no reason to doubt the credibility of those reports. In addition to the probative lay evidence, the weight of the medical evidence supports a nexus between the Veteran's depression and splenectomy. The 2007 VA psychiatrist provided an Axis IV diagnosis of "medical problems from previous car accident." Moreover, the 2008 VA opinion appears to have affirmatively related the Veteran's depression and splenectomy, but the Board also acknowledges the examiner's statement that any opinion relating the two is speculative. Those conflicting statements place the opinion in relative equipoise. Therefore, the Board will ultimately resolve the issue in favor of the Veteran. Significantly, there is no medical evidence of record disassociating the Veteran's depression from her splenectomy and medical problems resulting from the inservice MVA. Accordingly, resolving all reasonable doubt in the Veteran's favor, the Board concludes that service connection for depression, secondary to service-connected disability, is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2015). Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2015). Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disability. 38 U.S.C.A. § 1155 (West 2014). Rating a service-connected disability requires a review of the Veteran's entire medical history regarding that disability. 38 C.F.R. §§ 4.1, 4.2 (2015); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2015). If there is a question as to which rating to apply to a disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2015). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as staged ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the veteran. Kahana v. Shinseki, 24 Vet. App. 428 (2011). In doing so, equal weight is not accorded to each piece of evidence in the record as every item of evidence does not have the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2015). Residuals of Right Ear Injury The RO has rated the Veteran's service-connected residuals of a right ear injury 10 percent prior to May 9, 2014, and 30 percent as of May 9, 2014, under Diagnostic Code 7800. 38 C.F.R. § 4.118 (2015). She seeks a higher rating. The Board notes that the actual date of the VA examination which supported the increase was April 30, 2014. The date VA received the examination report from the contractor was May 9, 2014. Diagnostic Code 7800 provides that compensation is warranted for scars affecting the head, face or neck that are associated with one or more characteristics of disfigurement. The eight characteristics of disfigurement are: Scar is 5 or more inches (13 or more centimeters) in length. Scar is at least one-quarter inch (0.6 cm.) wide at the widest part. Surface contour of scar is elevated or depressed on palpation. Scar is adherent to underlying tissue. Skin is hypo-or hyper-pigmented in an area exceeding six square inches (39 square centimeters). Skin texture is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 square centimeters). Underlying soft tissue is missing in an area exceeding six square inches (39 square centimeters). Skin is indurated and inflexible in an area exceeding six square inches (39 square centimeters). 38 C.F.R. § 4.118, Diagnostic Code 7800, Note (1) (2015). Diagnostic Code 7800 provides that a scar with one characteristic of disfigurement of the head, face, or neck is rated 10 percent. A scar of the head, face, or neck with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement, is rated 30 percent. A scar of the head, face, or neck with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement, is rated 50 percent. A scar of the head, face, or neck with visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement, is rated 80 percent disabling. 38 C.F.R. § 4.118, Diagnostic Code 7800) (2015). VA provided the Veteran with scar examinations in March 2009 and May 2013. However, those examinations did not provide an assessment of the Veteran's right ear scar. An April 2014 VA examination to assessed the right ear scar. The examiner noted that the scar was not painful or unstable. It measured 3 centimeters by 1 centimeter. There was no elevation, depression or adherence to underlying tissue or missing underlying tissue, or abnormal texture or pigmentation. There was gross distortion or asymmetry of facial features in that there was a deformity of the auricle with loss of one third or more of the substance. The examiner further explained that there was partial loss of the right ear, superior aspect. After having reviewed the complete record, the Board finds that for the entire period on appeal, the criteria for a 30 percent rating for residuals of right ear injury have been met. The April 2014 VA examination report shows that the Veteran has partial loss of her right ear as a result of the inservice MVA. Because the residual right ear injury scar is manifested by both visible tissue loss and gross distortion or asymmetry of the auricles (ears), a 30 percent rating under Diagnostic Code 7800 is warranted for the entire period on appeal. The April 2014 VA examination is the first examination properly available to rate the claim, but the disability shown, loss of part of the auricle of the ear, was incurred in service, and there is nothing in the record to suggest that it was not been at the same level of severity for the entire period for which it has been service-connected. Therefore, the Board finds that the 30 percent rating criteria should be assigned since the beginning of the claim. In so finding, the Board refers to a September 1986 service medical record which describes the operation to repair the right ear. The physician noted the Veteran's right ear was nearly avulsed as a result of the MVA. It was torn free from the helix down to the outer border of the concha including anterior and posterior skin coverage plus the cartilage. The surgery included reapproximating the Veteran's ear. Significantly, there is no evidence showing that the Veteran's right ear scar was not manifested by visible tissue loss and gross distortion or asymmetry of the auricles at any time since the MVA in service. Accordingly, resolving reasonable doubt in favor of the Veteran, a 30 percent rating, but not higher, for a right ear scar is assigned under Diagnostic Code 7800 for the entire rating period on appeal. The preponderance of the evidence is against the assignment of any higher rating. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2015). Extraschedular Consideration The rating schedule represents as far as is practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. 38 C.F.R. § 3.321 (2015). In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2015). There is a three-part test for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of his disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008). Here, the evidence does not show such an exceptional disability picture that the available schedular rating for the service-connected right ear scar is inadequate. A comparison between the level of severity and symptomatology of this disability with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Veteran's right ear scar is productive visible tissue loss and results in gross distortion or asymmetry of the ears. Ratings in excess of that assigned are provided for certain manifestations of the service-connected right ear scar, but the medical evidence shows that those manifestations were not present. There is no evidence in the record of symptoms or impairment due to her right ear disability not encompassed by the criteria for the respective schedular rating assigned. The evidence does not show marked interference with employment or frequent hospitalization due to the right ear scar. Therefore, those criteria are not inadequate, and referral for extraschedular consideration is not warranted. 38 C.F.R. § 3.321(b) (2015); Thun v. Peake, 22 Vet. App. 111 (2008). A Veteran may be entitled to consideration under 38 C.F.R. § 3.321(b) for referral for an extra-schedular evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by schedular evaluations. Referral for an extraschedular rating under 38 C.F.R. § 3.321(b) is to be considered based upon either a single service-connected disability or upon the combined effect of multiple service-connected disabilities when the collective impact or compounding negative effects of the service-connected disabilities, when the disability picture presents disability not adequately captured by the schedular ratings for the service-connected disabilities. Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). The Veteran has not asserted, and the evidence of record does not suggest, any combined effect or collective impact of multiple service-connected disabilities that creates such an exceptional circumstance to make the schedular rating criteria inadequate. There is thus neither allegation nor indication that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to make inadequate the schedular rating criteria. ORDER Service connection for depression, secondary to service-connected splenectomy, is granted. For the entire appeal period, entitlement to a 30 percent rating, but not higher, for a right ear scar is granted. REMAND Further development is needed prior to adjudicating the claim for increased ratings for pancreatic pseudocyst; residuals of pneumothorax;; splenectomy, and to TDIU prior to July 7, 2011. The Veteran's service-connected residuals of pancreatic pseudocyst and pneumothorax, are rated under Diagnostic Codes which rate scars. However, the Veteran continues to claim that those scars have worsened. Therefore, a more current examination is needed. The Board also finds that an updated examination is necessary to evaluate the Veteran's service-connected splenectomy. The RO rated that disability 30 percent under Diagnostic Code 7706, effective October 4, 1994. However, effective October 23, 1995, Diagnostic Code 7706 was amended to include a maximum schedular rating of 20 percent. Since the Veteran filed the claim for a higher rating in 2009, the current Diagnostic Code 7706 is applicable. Accordingly, the Veteran is currently in receipt of a disability rating in excess of the maximum schedular disability rating of 20 percent under Diagnostic Code 7706. However, the currently assigned rating is protected because it has been in effect for more than 20 years and cannot be reduced absent a showing of fraud. 38 C.F.R. § 3.951(b) (2015). Nonetheless, the recent criteria also allow for separately rating complications such as systemic infections with encapsulated bacteria. The Veteran has not undergone a VA examination to rate the severity of splenectomy residuals since March 2009, more than seven years ago. In addition, the March 2009 examination findings are unclear. The report shows that there were no signs of splenomegaly, but the examiner noted that the Veteran's disease was active, without clarifying the active manifestations. Therefore, an updated examination is necessary. The Veteran appealed an October 2008 rating decision that denied TDIU. A July 2013 rating decision granted entitlement to a TDIU, effective July 7, 2011. That does not represent a full grant of the benefit sought and the claim for TDIU prior to July 7, 2011, remains on appeal. However, that claim is inextricably intertwined with the other pending claims being remanded, the resolution of which may have bearing on the TDIU claim. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: 1. Associate with the claims file any outstanding VA medical records pertaining to treatment for the claimed disabilities. 2. Schedule the Veteran for a VA skin examination to determine the current severity of service-connected pancreatic pseudocyst drainage scar, and residuals of pneumothorax. The examiner must review the claims file and should note that review in the report. All tests deemed necessary should be conducted. A complete rationale for any opinions expressed must be provided. Following review of the claims file and examination of the Veteran, the examiner should report all signs and symptoms necessary for rating the Veteran's residual scarring from pancreatic pseudocyst drainage scar and residuals of pneumothorax, using the appropriate Disability Benefits Questionnaire. 3. Schedule the Veteran for a VA examination to determine the severity of a service-connected splenectomy. The examiner must review the claims file and should note that review in the report. All signs and symptoms of the service-connected disability should be reported in detail. All tests deemed necessary, including serologic tests, should be conducted. A complete rationale for any opinions expressed should be provided. Following review of the claims file and examination of the Veteran, the examiner should: (a) Identify all residuals associated with the Veteran's splenectomy, to include any residual systemic infections and scarring. If the disability is active, as was noted on the 2009 examination, please explain what manifestations that entails. (b) Identify any residual disability productive of abdominal pain aside from already service-connected pancreatic pseudocyst and pancreatitis. (c) Specifically indicate whether the Veteran's splenectomy has resulted in systemic infections with encapsulated bacteria. 4. Then, readjudicate the increased rating claims for pancreatic pseudocyst, residuals of pneumothorax, and splenectomy, to include whether a separate rating for splenectomy scar is warranted. Also readjudicate the claim for TDIU prior to July 7, 2011. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs