Citation Nr: 1802989 Decision Date: 01/16/18 Archive Date: 01/29/18 DOCKET NO. 11-24 916 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to a compensable disability rating for gastritis and gastroparesis with fatty liver disease prior to July 25, 2015. 2. Entitlement to a compensable disability for painful scar, C-section, prior to July 25, 2015. 3. Entitlement to a compensable disability rating for surgical scar, left wrist. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Christopher M. Collins, Associate Counsel INTRODUCTION The Veteran had active military service from January 1997 to February 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2008 and August 2015 rating decision of the VA Regional Office (RO) located in Columbia, South Carolina. In October 2017 the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) sitting in Washington, D.C. During that hearing, she waived regional office review of new evidence. The issue of entitlement to a compensable disability rating for surgical scar, left wrist, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Prior to March 6, 2013, the Veteran's gastritis and gastroparesis with fatty liver disease was manifested by intermittent abdominal pain and mild nausea; from March 6, 2013 to July 25, 2015, the condition was manifested by persistently recurring epigastric distress as well dysphagia, regurgitation, and material weight loss resulting in severe impairment of health. 2. For the entire pendency of the increased rating claim appeal (i.e., the period prior to July 25, 2015), the Veteran's C-section scar was shown to be painful. CONCLUSIONS OF LAW 1. The criteria for a compensable disability rating for gastritis and gastroparesis with fatty liver disease prior to March 6, 2013 have not been met. 38 U.S.C. §§ 1154(a), 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.321, 4.14, 4.114, Diagnostic Code 7346 (2017). 2. The criteria for a 60 percent disability rating for gastritis and gastroparesis with fatty liver disease from March 6, 2013 until July 25, 2015 have been met. 38 U.S.C. §§ 1154(a), 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.321, 4.14, 4.114, Diagnostic Code 7346 (2017). 3. The criteria for 10 percent disability rating for a C-section have been met for the entire appeal period, through July 25, 2015. 38 U.S.C.. §§ 1155, 5103 (2012); 38 C.F.R. § 4.118, Diagnostic Codes 7802, 7804 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As a preliminary matter, the Board has reviewed the claims file and finds that there exist no deficiencies in VA's duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159; see also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (regarding the duties of a hearing officer); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159(b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification). Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record, including a total disability evaluation based upon individual unemployability. Notably, the Veteran referenced current employment during a July 2015 VA examination. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record); Rice v. Shinseki, 22 Vet. App. 447 (2009). Legal Criteria for Increased Rating Claims Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). 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 concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In every instance where the rating schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. Increased Rating for Gastritis and Gastroparesis with Fatty Liver Disease The Veteran's gastritis and gastroparesis with fatty liver disease is currently rated as 60 percent disabling, the highest possible rating for this condition, effective July 25, 2015. As clarified during the hearing, the Veteran seeks to have the noncompensable rating assigned for the condition prior to that date to be increased to 60 percent and has not contested the current 60 percent evaluation. Prior to discussing whether a compensable rating for the gastritis and gastroparesis with fatty liver disease is warranted for the period prior to July 25, 2015, the Board must address the fact that the Veteran is currently assigned one disability rating for several interrelated disease of the digestive system. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2016). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In the specific case of evaluating diseases of the digestive system, particularly within the abdomen, the Board is cognizant that although diseases may differ in the site of pathology, they produce a common disability picture characterized in the main by varying degrees of abdominal distress or pain, anemia, and disturbances in nutrition. Consequently, certain coexisting diseases in this area do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding as outlined in 38 C.F.R. § 4.14. 38 C.F.R. § 4.113. In this regard, 38 C.F.R. § 4.114 indicates that ratings under Diagnostic Codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 inclusive, will not be combined with each other. A single evaluation will be assigned under the diagnostic code that reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such evaluation. Here, the Veteran has been rated as noncompensable for gastritis and gastroparesis with fatty liver disease prior to July 25, 2015. That rating was assigned pursuant to Diagnostic Code 7399-7346. Hyphenated Diagnostic Codes are utilized 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. 38 C.F.R. § 4.27. The use of 7399 indicates only that a digestive disorder in general is the service-connected disorder and that there exists no one single Diagnostic Code to use for evaluation. Therefore, Diagnostic Code 7346 indicates that the entire disorder is rated by analogy to hiatal hernia. Under Diagnostic Code 7346, a 10 percent rating is warranted when there are two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent disability evaluation is warranted for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain and productive of considerable impairment of health. A 60 percent evaluation is warranted where there are symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health. Private outpatient records from Kent General Hospital dated in March 2008 show that the Veteran reported to the hospital complaining of abdominal pain. A radiological examination of her abdomen revealed a small hiatal hernia and fatty infiltration of the liver. Thereafter, during a November 2008 gastroenterology consultation at her local VA medical center, the Veteran reported a history of rectal bleeding that had resolved as well as a symptomatic hastroparesis and symptomatic reflux disease, which was being treated with medication. Subsequent VA and private medical records show that the Veteran continued to complain of intermittent stomach pain and nausea but the consistent impression by her treating physicians was that the digestive system disease was considered stable on a prescription medication regimen. The Veteran was first afforded a VA examination in connection with her claim of increased rating for the digestive system disease in April 2008. She reported that she had been diagnosed with gastritis in service and had been receiving treatment for the same ever since then. She also detailed that she was diagnosed with a fatty liver in 2006 via an ultrasound, and that the diagnosis was confirmed in 2007 via a liver biopsy. The final diagnosis was chronic gastritis and fatty liver. In a subsequent examination report prepared in August 2008, the VA examiner clarified that the Veteran's symptoms of persistent abdominal pain were alleviated with the use of prescription medication. In a November 2008 statement, the Veteran's spouse stated that she would wake up coughing and vomiting every morning and that she regularly had to miss work due to nausea and stomach distress. He also related an incident in 2006 when the Veteran had to be taken to the hospital after vomiting violently because she was severely dehydrated. In an October 2009 outpatient report prepared by a Dr. G.W.S. with Consultants in Gastroenterology, the Veteran reported experiencing recent problems with gastroparesis but acknowledged that she was doing well at time of the evaluation, other than experiencing some fatigue. Regarding her fatty liver disease, Dr. G.W.S. noted that the condition was diagnosed after an April 2007 biopsy revealed steatohepatitis with mild inflammation and fibrosis. At the time of the evaluation Dr. G.W.S. speculated that the fatigue symptomatology coupled with the steatohepatitis suggested a diagnosis of hypothyroidism. No other records from Dr. G.W.S. are available in the record. The Veteran was afforded a new VA examination to evaluate the nature and severity of her digestive system disease in December 2011. She reported that she continued on a prescription medication regimen that mostly alleviated her symptomatology but that she still followed strict dietary restrictions in order to avoid flare-ups. The examiner listed the symptomatology as infrequent epigastric distress, mild nausea lasting less than one day at a time, and found that the condition had no impact on the Veteran's occupational functioning. After concluding the examination, the examiner maintained the diagnoses of chronic gastritis and gastroparesis. On a corresponding liver examination also in December 2011, the fatty liver disease was noted but the examiner did not find any symptoms attributable to the fatty liver and thus determined that it also had no impact on the Veteran's occupational functioning. On a March 2013 VA outpatient record, the Veteran reported that her stomach pain had increased in severity and frequency and that she was also experiencing choking and coughing while eating in addition to nausea afterwards. An esophagogastroduodenoscopy (EGD) administered that same month revealed no hiatal hernia, peristalsis or stricture, but the gastroesophageal junction was dilated. A subsequent outpatient record dated in October 2013 shows that the Veteran continued to report chronic abdominal pain, intermittent nausea, and diarrhea, as well as voluntary weight loss. During the October 2017 hearing, the Veteran stated that the symptomatology she experienced at the time of the July 2015 VA examination that formed the basis of the increase to 60 percent had existed ever since she was first diagnosed with the various digestive system diseases. Upon consideration of the record, the Board finds that the Veteran's digestive system disease warrants the full 60 percent evaluation from March 6, 2013, the date of the VA outpatient record that first showed that the Veteran was experiencing symptomatology that had increased in severity and frequency. Prior to this date, both of the VA examinations and the available VA and private medical records do not reflect that the Veteran was experiencing any more than symptomatology of a mild severity that was completely managed with prescription medication. Indeed, the December 2011 VA examiner determined that the mild nausea that the Veteran reported resulted in no occupational or functional impairment. For the Veteran's digestive system disease to warrant a compensable rating for this period, it would have to be shown that the Veteran was experiencing two or more of the symptoms for the 30 percent evaluation of less severity, and the only applicable symptom that the Veteran was experiencing during this time period was mild nausea. There is no indication from the record that the Veteran experienced recurrent dysphagia, pyrosis, or regurgitation at this time. Therefore, a compensable rating during the period prior to March 6, 2013 for the digestive system disease is denied. Moving on to the period from March 6, 2013 to July 25, 2015, the Board does find that the Veteran is entitled to the full 60 percent rating, on the basis of persistently recurring epigastric distress as well dysphagia, regurgitation, and material weight loss. Specifically, the Veteran first reported experiencing recurring epigastric distress, dysphagia and regurgitation on March 6, 2013, as reflected on the outpatient record from that day, and has sought treatment for this increased symptomatology from then onwards. Moreover, during the period prior to July 25, 2015, VA outpatient records show that the Veteran was advised to lose weight and did so voluntarily. In summation, the Board finds that the symptomatology for the digestive system disease was productive of severe impairment of health from March 6, 2013 onwards. Accordingly, the Board finds that the digestive system disease warrants the full 60 percent evaluation from March 6, 2013 as rated by analogy to hiatal hernia pursuant to Diagnostic Code 7346. Increased Rating of C-Section Scar The Veteran currently has a 10 percent rating assigned for a painful scar on her abdomen resulting from a C-section, effective July 25, 2015. As she stated during the October 2017 hearing, the Veteran is content with the 10 percent rating from July 25, 2015, but seeks to have that 10 percent rating apply back to the period prior to July 25, 2015. The 10 percent rating was assigned under the provisions of 38 C.F.R. § 4.118, Diagnostic Code 7804, applicable to unstable or painful scars. Diagnostic Code 7804 provides for a 10 percent rating for one or two unstable or painful scars, a 20 percent rating for three or four such scars, and a 30 percent rating for five or more such scars. Note 1 to diagnostic code 7804 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scars. Note 2 provides that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note 3 provides that scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable. In addition, Diagnostic Code 7802 provides a maximum 10 percent rating for a burn or other scars that are superficial and nonlinear involving an area of 144 square inches (929 sq. cm) or greater. Note (1) provides that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Code 7802. The Veteran was afforded a VA examination in April 2008 to evaluate the severity of the C-section scar. She reported that she developed a large hematoma involving a C-section scar that became infected and necessitated revising the scar in 2005. According to the Veteran the scar was still numb. A physical examination revealed a 15-inch by one-eighth-inch lower abdominal scar that was well healed, with no evidence of keloid formation noted and no tenderness on palpation. A review of VA treatment records shows that the Veteran was complaining of her C-section scar being painful as early as August 2008. The Veteran was afforded a new VA examination in December 2011 to again evaluate the severity of the C-section scar. She reported that she did not have any pain with the scar although she did experience an intermittent pulling sensation at the site of the original C-section scar. The scar was measured as 60 centimeters long. It was the examiner's opinion that the C-section scar had no functional impact on the Veteran's ability to work. During the October 2017 hearing, the Veteran stated that she had reported that her C-section was painful while seeking treatment at a VA medical center, and that on two occasions she was administered ultrasound examinations in order to look for underlying tissue adherence or damage. She concluded by testifying that her C-section scar had always been painful since the recision in service. In light of the Veteran's credible testimony during the October 2017 hearing that the C-section scar had always been painful, and in further acknowledgement of the August 2008 VA treatment record in which the Veteran did indeed complain of her C-section scar being painful, the Board will grant the Veteran the benefit of the doubt and thus finds that a 10 percent evaluation us warranted for the entire pendency of the increased rating claim appeal. As there is only one scar, and there is no indication that it is unstable, a 20 percent evaluation is not warranted. Moreover, a separate 10 percent rating under 38 C.F.R. § 4.118, Diagnostic Code 7802 is also not warranted as the scar is not superficial and nonlinear and does not involve an area of 144 square inches or greater. Therefore, a 10 percent rating for a painful and nontender scar is the most appropriate evaluation of the Veteran's C-section scar. ORDER A compensable rating for gastritis and gastroparesis with fatty liver disease for the period from February 4, 2006 to March 6, 2013 is denied. A disability rating of 60 percent for the period from March 6, 2013 until July 25, 2015 is granted for gastritis and gastroparesis with fatty liver disease, subject to the laws and regulations governing the payment of monetary benefits. A 10 percent disability rating for a C-section scar is granted for the entire period of the increased rating claim appeal up to July 25, 2015, subject to the laws and regulations governing the payment of monetary benefits. REMAND The severity of the left wrist scar was last evaluated in a VA examination dated in July 2015. The examiner noted the existence of a five centimeter long scar on the left wrist which the Veteran attributed to a bone grant and cyst removal that occurred after she broke her left wrist in service. The examiner stated that neither the left wrist scar nor the unrelated C-section scar resulted in limitation of function or resulted in any functional impact on the Veteran's ability to work. In summation, the examiner found that the severity of both scars was at most mild. During the October 2017 hearing before the undersigned, the Veteran asserted that her left wrist scar impeded her ability to completely rotate her left wrist. It was her representative's contention that the Veteran never had the range of motion of her left wrist tested on a VA examination and thus the functional limitation stemming from the hindered range of motion was never properly accounted for. The Veteran thus requested a new VA examination to specifically test the range of motion of her left wrist and determine whether it was impeded by the left wrist scar. The Veteran's contention that her left wrist range of motion is hindered by the left wrist scar triggers the Board's obligation to provide her with a new VA examination, as the Board cannot adjudicate the claim for an increased rating of the left wrist scar without further medical clarification as to whether it causes any functional limitation. The Veteran is therefore entitled to a new VA examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to evaluate the severity of the left wrist scar. All necessary tests should be conducted. The entire claims file, to include a complete copy of this remand, must be made available to the examiner, and the report of the examination should note review of the file. The examiner must first record the range of motion on clinical evaluation, in terms of degrees with a goniometer. If there is clinical evidence of pain on motion, the examiner must indicate the specific degree of motion at which such pain begins. The same range of motion studies must then be repeated after at least three repetitions and after any appropriate weight-bearing exertion. This information must be derived from joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing. The examination report must confirm that all such testing has been made and reflect the results of the testing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, the examiner must clearly explain why that is so. The examiner should also ensure that they measure the size of the left wrist scar and state whether the scar is painful and/or unstable. After reviewing the Veteran's complaints and medical history, the examiner must then render an opinion as to the extent to which the Veteran experiences functional impairments as due to her left wrist scar. 2. After completing the above action, the claim on appeal must be readjudicated. If any benefit remains denied, a supplemental statement of the case must be provided to the Veteran and her representative. After the Veteran and her representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter 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 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 2014). ______________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs