Citation Nr: 0005244	
Decision Date: 02/28/00    Archive Date: 03/07/00

DOCKET NO.  98-05 350	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boise, 
Idaho


THE ISSUES

1.  Entitlement to an initial evaluation in excess of 20 
percent for postoperative right knee disability.

2.  Entitlement to an initial compensable evaluation for 
cholecystectomy.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant






INTRODUCTION

The appellant served on active duty from July 26, 1974 to 
July 31, 1997.

The current appeal arose from a December 1997 rating decision 
of the Department of Veterans Affairs (VA) Regional Office 
(RO) in Houston, Texas.  The RO, in pertinent part, granted 
entitlement to service connection for postoperative right 
knee disability with assignment of a 10 percent evaluation 
effective August 1, 1997, and for cholecystectomy with 
assignment of a noncompensable evaluation also effective 
August 1, 1997.

In July 1999 the RO granted entitlement to an increased 
evaluation of 20 percent for postoperative right knee 
disability effective August 1, 1997, and affirmed the 
noncompensable evaluation for cholecystectomy.

In November 1999 the Board of Veterans' Appeals (Board) 
remanded the case to the RO to accord the veteran a requested 
hearing before a Travel Board Member at the RO.  The request 
for such a hearing was withdrawn, and the case has been 
returned to the Board for further appellate review.

The evidentiary record shows that on several occasions the 
veteran has expressed the opinion that his acid reflux 
disease is secondary to his service-connected gallbladder 
removal.  This issue has been neither procedurally prepared 
nor certified for appellate review and is referred to the RO 
for initial consideration and appropriate adjudicative 
action.  Godfrey v. Brown, 7 Vet. App. 398 (1995).

The issue of entitlement to an initial evaluation in excess 
of 20 percent for postoperative right knee disability is 
addressed in the remand portion of this decision.


FINDING OF FACT

The veteran's previous cholecystectomy is not shown to be 
productive of any ascertainable residuals.


CONCLUSION OF LAW

The criteria for an initial compensable evaluation for 
cholecystectomy have not been met.  38 U.S.C.A. §§ 1155, 
5107;  38 C.F.R. §§ 4.7, 4.114, Diagnostic Code 7318 (1999).


REASONS AND BASES FOR FINDING AND CONCLUSION

Factual Background

A review of the service medical records discloses that in 
April 1997, the veteran underwent a laparoscopic 
cholecystectomy shortly prior to separation from service.

VA conducted a medical examination of the veteran in October 
1997.  He reported that since having undergone a 
cholecystectomy in April 1997, he had no longer had any 
gallbladder problems.  

The veteran presented testimony before a Hearing Officer at 
the RO in July 1998.  A transcript of the testimony has been 
associated with the claims file.  He testified that as to his 
gallbladder, he stated that since its removal he had suffered 
from acid reflux.  As to this disorder, he stated that a 10 
percent evaluation would satisfy his appeal.

VA conducted a special orthopedic examination of the veteran 
in August 1998.  He was currently employed as a file clerk 
and a full time student.  He was taking antacids and Mylanta 
for acid reflux subsequent to gallbladder removal.  

On file are VA outpatient treatment reports dated during the 
late 1990's primarily referable to unrelated disorders.  

VA conducted a gallbladder examination of the veteran in 
September 1998.  The examiner noted that the veteran was 
currently a college student majoring in education.  In April 
1997 he underwent a laparoscopic cholecystectomy.  There were 
no postoperative complications.  With respect to his 
gallbladder, he "feels like a million bucks".  Prior to his 
discharge from service he reported with complaints of gastric 
acid reflux.  There were no food intolerances and he had not 
had an upper gastrointestinal series.  Prior to his 
gallbladder surgery he underwent an upper endoscopy which 
revealed no ulcers or lesions.  He had not lost weight.  

On examination were seen well healed laparoscopic 
cholecystectomy scars around the umbilicus and the right 
upper quadrant of the abdomen.  The abdomen was nontender 
without any organomegaly.  The clinical assessment was 
cholecystectomy without current residuals.  The examiner 
noted it was less likely than not that the gastroesophageal 
reflux symptoms relate as a cause or a consequence of the 
gallbladder symptoms.

Criteria

Disability evaluations are determined by the application of 
the VA Schedule for Rating Disabilities (Rating Schedule), 
38 C.F.R. Part 4.  The percentage ratings contained in the 
Rating Schedule represent as far as can be practically 
determined, the average impairment in earning capacity 
resulting from diseases and injuries incurred or aggravated 
during military service and their residual conditions in 
civil occupations.  38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. 
§ 4.1 (1999).

Disability evaluations are determined by the application of a 
schedule of ratings which is based on the average impairment 
of earning capacity.  Separate diagnostic codes identify the 
various disabilities.  38 U.S.C.A. § 1155 (West 1991); 
38 C.F.R. Part 4 (1999).

The inquiry into disability evaluations centers on the 
ability of the body or system in question to function in 
daily life, with specific reference to employment.  38 C.F.R. 
§ 4.10 (1999).  In considering the residuals of injury, it is 
essential to trace the medical-industrial history of the 
disabled person from the original injury, considering the 
nature of the injury and the attendant circumstances, and the 
requirements for, and the effect of, treatment over past 
periods, and the course of the recovery to date.  38 C.F.R. 
§ 4.41 (1999).

In a claim for a greater original rating after an initial 
award of service connection, all of the evidence submitted in 
support of the appellant's claim is to be considered.  In 
initial rating cases, separate ratings can be assigned for 
separate periods of time based on the facts found, a practice 
known as "staged" ratings.  Fenderson v. West, 12 Vet. 
App. 119 (1999); 38 C.F.R. § 4.2 (1999).

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.  38 C.F.R. § 4.7.

Ratings shall be based as far as practicable, upon the 
average impairments of earning capacity with the additional 
proviso that the Secretary shall from time to time readjust 
this schedule of ratings in accordance with experience.  To 
accord justice to the exceptional case where the schedular 
evaluations are found to be inadequate, the Under Secretary 
for Benefits or the Director, Compensation and Pension 
Service, upon field station submission, is authorized to 
approve on the basis of the criteria set forth in this 
paragraph an extra-schedular evaluation commensurate with the 
average earning capacity impairment due exclusively to the 
service-connected disability or disabilities.  The governing 
norm in these exceptional cases is: 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 as to 
render impractical the application of the regular schedular 
standards.  38 C.F.R. § 3.321(b)(1) (1999).


A noncompensable evaluation may be assigned for 
nonsymptomatic removal of the gall bladder, 10 percent with 
mild symptoms, and 30 percent with severe symptoms.  
38 C.F.R. § 4.114; Diagnostic Code 7318.

In general, all disabilities, including those arising from a 
single disease entity, are rated separately, and all 
disability ratings are then combined in accordance with 
38 C.F.R. § 4.25 (1999).  However, the evaluation of the same 
"disability" or the same "manifestations" under various 
diagnoses is prohibited.  38 C.F.R. § 4.14 (1999).  

The Court has held that a claimant may not be compensated 
twice for the same symptomatology as "such a result would 
overcompensate the claimant for the actual impairment of his 
earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 
(1993).  This would result in pyramiding, contrary to the 
provisions of 38 C.F.R. § 4.14.  The Court has acknowledged, 
however, that when a veteran has separate and distinct 
manifestations attributable to the same injury, he should be 
compensated under different diagnostic codes.  Esteban v. 
Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. 
App. 225 (1993).

When all the evidence is assembled, VA is responsible for 
determining whether the evidence supports the claim or is in 
relative equipoise, with the appellant prevailing in either 
event, or whether a preponderance of the evidence is against 
the claim, in which case, the claim is denied.  Gilbert v. 
Derwinski, 1 Vet. App. 49 (1990).

When, after consideration of all of the evidence and material 
of record in an appropriate case before VA, there is an 
approximate balance of positive and negative evidence 
regarding the merits of an issue material to the 
determination of the matter, the benefit of the doubt in 
resolving each such issue shall be given to the claimant.  
38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.3 
(1999).

Analysis

Initially, the Board finds that the veteran's claim of 
entitlement to an initial compensable evaluation for 
cholecystectomy is well grounded within the meaning of 
38 U.S.C.A. § 5107(a); that is, a plausible claim has been 
presented.  Murphy v. Derwinski, 1 Vet. App. 78 (1990).

In general, an allegation of increased disability is 
sufficient to establish a well grounded claim seeking an 
increased rating.  Proscelle v. Derwinski, 2 Vet. App. 629 
(1992).  The veteran's assertions concerning the severity of 
his service-connected cholecystectomy (that are within the 
competence of a lay party to report) are sufficient to 
conclude that his claim for an initial compensable evaluation 
for that disability is well grounded.  King v. Brown, 5 Vet. 
App. 19 (1993).

The Board is also satisfied that all relevant facts have been 
properly developed to their full extent and that VA has met 
its duty to assist.  Godwin v. Derwinski, 1 Vet. App. 419 
(1991); White v. Derwinski, 1 Vet. App. 519 (1991).

The RO has rated the veteran's cholecystectomy as 
noncompensable under diagnostic code 7318 of the VA Schedule 
for Rating Disabilities.  The noncompensable evaluation 
contemplates nonsymptomatic removal of the gallbladder.  On 
examination the veteran has reported no symptomatic residuals 
of the surgery undergone just prior to his separation from 
service.  Moreover, no symptomatic residuals have been found 
on examination.  

While it is the belief of the veteran that his acid reflux 
disease is a manifestation of postoperative residuals of his 
gallbladder surgery, a VA examiner has discounted any such 
relationship.  In any event, the issue of whether acid reflux 
disease should be service-connected on any basis has been 
referred to the RO for initial consideration.

In order to warrant assignment of the next higher evaluation 
of 10 percent, the veteran must have mild symptoms of his 
gallbladder removal surgery.  


As there are no such residuals shown, there is no basis upon 
which to predicate a grant of a 10 percent evaluation under 
diagnostic code 7318.  No question has been presented as to 
which of two evaluations would more properly classify the 
severity of the veteran's cholecystectomy.  38 C.F.R. § 4.7.

In addition, the Court has held that a separate, additional 
rating may be assigned if the veteran's knee disability is 
manifested by a scar that is poorly nourished with repeated 
ulceration, a scar that is tender and painful on objective 
demonstration, or a scar that is otherwise causative of 
limitation of function.  38 C.F.R. § 4.118; Diagnostic Codes 
7803, 7804, 7805 (1999); Esteban v. Brown, 6 Vet. App. 259 
(1994).

In the veteran's case at hand, the VA examiners have reported 
healed scarring from the previous cholecystectomy with no 
evidence of poor nourishment with repeated ulceration, 
tenderness and pain on objective demonstration, or limitation 
of function.  Accordingly, assignment of a separate 
compensable evaluation for residual scarring from the 
service-connected cholecystectomy is not warranted.  
38 C.F.R. § 4.118; Diagnostic Codes 7803, 7804, 7805.

In view of the denial of entitlement to an initial 
compensable evaluation for cholecystectomy, the Board finds 
no basis for assignment of "staged" ratings.  Fenderson, 
supra.

The Court has held that the Board is precluded by regulation 
from assigning an extraschedular rating under 38 C.F.R. 
§ 3.321(b)(1) in the first instance.  Floyd v. Brown, 9 Vet. 
App. 88 (1996).  The Board, however, is still obligated to 
seek all issues that are reasonably raised from a liberal 
reading of documents or testimony of record and to identify 
all potential theories of entitlement to a benefit under the 
law or regulation.

In Bagwell v. Brown, 9 Vet. App. 337 (1996), the Court 
clarified that it did not read the regulation as precluding 
the Board from affirming an RO conclusion that a claim does 
not meet the criteria for submission pursuant to 38 C.F.R. 
§ 3.321(b)(1), or from reaching such conclusion on its own.  
In the veteran's case at hand, the RO provided the veteran 
the criteria for assignment of extraschedular evaluation, but 
it did not actually discuss the provisions in light of his 
claim.

The Court has further held that the Board must address 
referral under 38 C.F.R. § 3.321(b)(1) only where 
circumstances are presented which the VA Under Secretary for 
Benefits or the Director of the VA Compensation and Pension 
Service might consider exceptional or unusual.  Shipwash v. 
Brown, 8 Vet. App. 218, 227 (1995).

The Board does not find the veteran's disability picture to 
be unusual or exceptional in nature as to warrant referral of 
his case to the Director or Under Secretary for review for 
consideration of extraschedular evaluation under the 
provisions of 38 C.F.R. § 3.321(b)(1).  In this regard, the 
Board notes that there are no symptomatic residuals of the 
gallbladder removal surgery which have required frequent 
inpatient care or resulted in marked interference with the 
veteran's employment.

Although the veteran is entitled to the benefit of the doubt 
where the evidence is in approximate balance, the benefit of 
the doubt doctrine is inapplicable where, as here, the 
preponderance of the evidence is against the claim for an 
initial compensable evaluation for cholecystectomy.  Gilbert 
v. Derwinski, 1 Vet. App. 49, 53 (1990).


ORDER

Entitlement to an initial compensable evaluation for 
cholecystectomy is denied.


REMAND

This claim must be afforded expeditious treatment by the RO.  
The law requires that all claims that are remanded by the 
Board or by the Court for additional development or other 
appropriate action must be handled in an expeditious manner.  
See The Veterans' Benefits Improvements Act of 1994, Pub. L. 
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. 
§ 5101 (West Supp. 1999) (Historical and Statutory Notes).  
In addition, VBA's Adjudication Procedure Manual, M21-1, Part 
IV, directs the ROs to provide expeditious handling of all 
cases that have been remanded by the Board and the Court.  
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.

The Court has held that where the evidence does not 
adequately evaluate the current state of the condition, VA 
must provide a new examination.  Olsen v. Principi, 3 Vet. 
App. 480, 482 (1992) (citing Proscelle v. Derwinski, 2 Vet. 
App. 629, 632 (1992)).  

The Court has further held that diagnostic codes predicated 
on limitation of motion do not prohibit consideration of a 
higher rating based on functional loss due to pain or due to 
flare-ups under 38 C.F.R. §§ 4.40, 4.45, 4.59 (1999).  
Johnson v. Brown, 9 Vet. App. 7 (1997) and DeLuca v. Brown, 8 
Vet. App. 202, 206 (1995).  Although the current code used by 
the RO for rating the veteran's right knee disability, 
diagnostic code 5257 does not address limitation of motion, 
diagnostic codes 5260 and 5261 addressing limitation of 
flexion and extension may also be applied in considering 
assignment of an increased evaluation.  

Although the most recent examination of the veteran for VA 
compensation purposes is comparatively thorough, specific 
findings relative to the requirements set forth in DeLuca, 
and 38 C.F.R. §§ 4.40, 4.45 were not included in the 
examination report.  In accordance with the statutory duty to 
assist the veteran in the development of evidence pertinent 
to his claim, the Board is remanding the case to the RO for 
further development as follows:

1.  The appellant has the right to submit 
additional evidence and argument on the 
matter or matters the Board has remanded 
to the RO.  Kutscherousky v. West, 12 
Vet. App. 369 (1999).

2.  The RO should contact the veteran and 
request that he identify the names, 
addresses, and approximate dates of 
treatment for all medical health care 
providers, VA and non-VA, inpatient and 
outpatient, who may have additional 
records referable to his service-
connected postoperative right knee 
disability.  After obtaining any 
necessary authorization or medical 
releases, the RO should obtain and 
associate with the claims file legible 
copies of the veteran's complete 
treatment reports from all sources 
identified whose records have not 
previously been secured.  Regardless of 
the veteran's response, the RO should 
secure all outstanding VA treatment 
reports.

3.  The RO should arrange for a VA 
orthopedic examination of the veteran by 
an orthopedic surgeon or other 
appropriate specialist for the purpose of 
ascertaining the nature and extent of 
severity of his right knee disability.  
Any further indicated special studies 
should be conducted.  

The claims file, copies of the criteria 
under 38 C.F.R. §§ 4.40, 4.45, 4.59 and a 
separate copy of this remand should be 
made available to and reviewed by the 
examiner prior and pursuant to conduction 
and completion of the examination and the 
examiner must annotate the examination 
report in this regard.  


The examiner should record pertinent 
medical complaints, symptoms, and 
clinical findings, including specifically 
active and passive range of motion, and 
comment on the functional limitations, if 
any caused by the appellant's service-
connected postoperative right knee 
disability in light of the provisions of 
38 C.F.R. §§ 4.40, 4.45, 4.59.  It is 
requested that the examiner provide 
explicit responses to the following 
questions:

(a) Does the service-connected right 
knee disability involve only the 
joint structure, or does it also 
involve the muscles and nerves?
(b) Does the service-connected 
disorder cause weakened movement, 
excess fatigability, and 
incoordination, and if so, can the 
examiner comment on the severity of 
these manifestations on the ability 
of the appellant to perform average 
employment in a civil occupation? If 
the severity of these manifestations 
cannot be quantified, the examiner 
must so indicate.
(c) With respect to subjective 
complaints of pain, the examiner is 
requested to specifically comment on 
whether pain is virtually manifested 
on movement of the joints, the 
presence and degree of, or absence 
of, muscle atrophy attributable to 
the service-connected disability, the 
presence or absence of changes in 
condition of the skin indicative of 
disuse due to the service-connected 
disability, or the presence or 
absence of any other objective 
manifestation that would demonstrate 
disuse or functional impairment due 
to pain attributable to the service-
connected disability.

(d) The examiner is also requested to 
comment upon whether or not there are 
any other medical or other problems 
that have an impact on the functional 
capacity affected by the service-
connected right knee disability, and 
if such overlap exists, the degree to 
which the nonservice-connected 
problem creates functional impairment 
that may be dissociated from the 
impairment caused by the service-
connected disability.  If the 
functional impairment created by the 
nonservice-connected problem cannot 
be dissociated, the examiner should 
so indicate.

Any opinions expressed by the examiner 
must be accompanied by a complete 
rationale.

4.  Thereafter, the RO should review the 
claims file to ensure that all of the 
foregoing requested development has been 
completed.  In particular, the RO should 
review the requested examination report 
and required opinions to ensure that they 
are responsive to and in complete 
compliance with the directives of this 
remand and if they are not, the RO should 
implement corrective procedures.  Stegall 
v. West, 11 Vet. App. 268 (1998).

5.  After undertaking any development 
deemed essential in addition to that 
specified above, the RO should 
readjudicate the issue of entitlement to 
an evaluation in excess of 20 percent for 
post-operative right knee disability.  
The RO should document its consideration 
of the applicability of 38 C.F.R. §§ 
3.321(b)(1), 4.40, 4.45, 4.59 (1999).

If the benefit requested on appeal is not granted to the 
veteran's satisfaction, the RO should issue a supplemental 
statement of the case.  A reasonable period of time for a 
response should be afforded.  Thereafter, the case should be 
returned to the Board for further appellate review, if 
otherwise in order.  By this remand, the Board intimates no 
opinion as to any final outcome warranted.



		
	RONALD R. BOSCH
	Member, Board of Veterans' Appeals