Citation Nr: 0002013 Decision Date: 01/27/00 Archive Date: 02/02/00 DOCKET NO. 94-17 398 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office and Insurance Center (RO) in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an increased rating for the service- connected residuals of subacute bacterial endocarditis, currently evaluated as 10 percent disabling. 2. Entitlement to a compensable rating for the service- connected residuals of infectious hepatitis. 3. Entitlement to service connection for a left shoulder disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD James L. March, Counsel INTRODUCTION The veteran had active service from June 1946 to April 1948 and March to August 1954. This matter comes to the Board of Veterans' Appeal (Board) on appeal from rating decisions of the RO. The Board notes that the veteran also had perfected appeals of entitlement to compensation benefits pursuant to 38 U.S.C.A. § 1151 (West 1991 & Supp. 1999) for residuals of an appendectomy and dental procedures. In March 1999, however, the RO granted those benefits; thus, the issues are no longer in appellate status. (The issues of service connection for a left shoulder disability and an increased rating for the residuals of the subacute bacterial endocarditis are addressed in the Remand portion of this document.) FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. There is no evidence of any current manifestations or related liver damage due to the veteran's service-connected infectious hepatitis. CONCLUSION OF LAW The criteria for a compensable rating for the service- connected residuals of infectious hepatitis have not been met. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.114 including Diagnostic Code 7345 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board finds that the veteran's claim for an increased rating for hepatitis is plausible and capable of substantiation, and thus well grounded within the meaning of 38 U.S.C.A. § 5107(a). See Proscelle v. Derwinski, 2 Vet. App. 629 (1992). When a veteran submits a well-grounded claim, VA must assist him in developing facts pertinent to the claim. 38 U.S.C.A. § 5107(a). The Board is satisfied that all available relevant evidence has been obtained regarding the claim, and that no further assistance to the veteran is required to comply with 38 U.S.C.A. § 5107(a). In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41 and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the service medical records and all other evidence of record pertaining to the history of the veteran's hepatitis. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. A careful review of the service medical records shows that the veteran was treated for infectious jaundice in 1947. In May 1949, the RO granted service connection for infectious hepatitis and assigned a noncompensable evaluation. In February 1990, the veteran was hospitalized for repair of a left inguinal hernia. The hospitalization report notes the veteran's history of hepatitis, but there is no evidence suggesting that he had active symptomatology. A July 1990 letter from E. A. Hildreth, M.D., includes a discussion of the veteran's history of hepatitis. Dr. Hildreth suggested a hepatic evaluation for evidence of any chronic active disease and/or hepatoma. There was no evidence, however, of any active disease. In May 1998, a VA examination was conducted. The veteran reported no vomiting, hematemesis or melena. He stated that if he drank too much coffee, he had a fullness in the right upper quadrant of his abdomen. He alleged that he had trouble eating greasy foods. He reported one episode of colicky pain two years earlier. He complained of chronic fatigue associated with chronic anxiety. The examination was essentially normal. The diagnosis was that of "[h]istory of hepatitis B with positive hepatitis B core and surface antibodies; no clinical signs of symptoms of chronic hepatitis." There are numerous VA outpatient and inpatient treatment records. Although several reports note the veteran's history of hepatitis B, there is no evidence of any symptoms or treatment of hepatitis. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4. The Board attempts to determine the extent to which the veteran's disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Regulations require that where there is a question as to which of two evaluations is to 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. The veteran's service-connected residuals of infectious hepatitis is currently rated as noncompensably disabling under the provisions of 38 C.F.R. § 4.114 including Diagnostic Code 7345. Under that diagnostic code, a noncompensable rating is warranted for healed, nonsymptomatic infectious hepatitis. A 10 percent rating is warranted for demonstrable liver damage with mild gastrointestinal disturbance. A 30 percent rating requires minimal liver damage with associated fatigue, anxiety and gastrointestinal disturbance of lesser degree and frequency than a 60 percent rating, but necessitating dietary restriction or other therapeutic measures. A 60 percent rating requires moderate liver damage and disabling recurrent episodes of gastrointestinal disturbance, fatigue and mental depression. A 100 percent rating is warranted for marked liver damage manifest by liver function test and marked gastrointestinal symptoms or with episodes of several weeks duration aggregating three or more a year and accompanied by disabling symptoms requiring rest therapy. The Board finds that the preponderance of the evidence is against the claim for a compensable rating for the veteran's service-connected residuals of infectious hepatitis. There is no evidence that the veteran has any symptoms of hepatitis or related liver damage. In the absence of evidence of demonstrable liver damage with mild gastrointestinal disturbance, the Board must find that the disability picture is such that the criteria for a 10 percent rating have not been met. The preponderance of the evidence is against a compensable evaluation for his service-connected residuals of infectious hepatitis. Consideration has been given to the provisions of 38 C.F.R. Parts 3 and 4, whether or not they were raised by the appellant, as required by Schafrath v. Derwinski, 1 Vet. App. 589 and the Board has applied all the provisions of Parts 3 and 4 that would reasonably apply. Further, 38 C.F.R. § 3.321(b)(1) provides that where the disability picture is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the veteran for his service-connected disability, then an extraschedular evaluation will be assigned. If the question of an extraschedular rating is raised by the record or the veteran before the Board, the correct course of action for the Board is to raise the issue and remand the matter for decision in the first instance by the RO. Bagwell v. Brown, 9 Vet. App. 157, 158 (1996); Floyd v. Brown, 9 Vet. App. 88, 94 (1996). Evidence has not been presented to show that the veteran's current disability picture is not adequately compensated by the applicable provisions of the rating schedule; nor has he specifically raised this issue of an extraschedular rating. As such, the Board finds that consideration of this matter under the provisions of 38 C.F.R. § 3.321 is not appropriate. ORDER A compensable rating for the service-connected residuals of infectious hepatitis is denied. REMAND The veteran alleges that his service-connected residuals of subacute bacterial endocarditis, is more disabling than 10 percent. The veteran's disability has been evaluated under 38 C.F.R. § 4.104, Diagnostic Codes 7001. During the course of this appeal, however, the criteria for evaluating cardiovascular disorders were changed, effective on January 12, 1998. Although the RO addressed the new criteria in a March 1999 Supplemental Statement of the Case, that decision was based on a May 1998 VA examination. The May 1998 VA examination was clearly inadequate for the purpose of considering the new rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994). Where a law or regulation changes after a claim has been filed or reopened, but before the administrative or judicial appeal process has been concluded, the version most favorable to the veteran will apply. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). Following a review of the entire claims folder, it is the opinion of the Board that the clinical findings currently of record are inadequate to rate the veteran's service-connected disease under both the old and new rating criteria. Section 5103(a) of title 38 of the U.S. Code provides: "If a claimant's application for benefits under the laws administered by the Secretary is incomplete, the Secretary shall notify the claimant of the evidence necessary to complete the application." 38 U.S.C.A. § 5103(a) (West 1991). VA, in certain circumstances, may be obligated to advise the veteran of evidence that is needed to complete his application for benefits. This obligation depends upon the particular facts of the case. See Robinette v. Brown, 8 Vet. App. 69, 77 (1995). In order for the claim of service connection for a left shoulder disorder to be well grounded, there must be competent evidence of: (1) a current disability; (2) an in- service injury or disease; and (3) a nexus between the current disability and the in-service injury or disease. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). The veteran must provide competent evidence of a nexus between current disability and his period of service. In light of the foregoing, the Board is REMANDING this case for the following actions: 1. The RO should take appropriate steps to contact the veteran and request that he identify the names, addresses, and approximate dates of treatment received from all VA and non-VA health care providers for his service-connected residuals of subacute bacterial endocarditis since May 1998 and for a left shoulder disability since service. After obtaining any necessary authorization from the veteran, the RO should attempt to obtain copies of pertinent treatment records identified by the veteran in response to this request, which have not been previously secured. 2. Regarding the service connection claim, the RO should take appropriate steps to contact the veteran in order to afford him an opportunity to provide additional argument and information to support his application for service connection for a left shoulder disorder. This should include asking him to provide all medical evidence to support his lay assertions that he has a left shoulder disability due to disease or injury in service. The veteran should be afforded a reasonable amount of time to obtain and submit such evidence to the RO. 3. The RO should review the record to determine whether a well-grounded claim of service connection for a left shoulder disorder has been submitted. If it is determined that the claim is well grounded, then the RO should undertake a de novo review of the claim based on the evidentiary record in its entirety. All indicated development should be undertaken in this regard. Due consideration should be given to all pertinent laws and regulations. 4. Then, the RO should arrange for a VA examination to determine the current severity of the veteran's service- connected residuals of subacute bacterial endocarditis. The veteran should be accorded a comprehensive VA cardiovascular examination to determine the current severity of his service- connected residuals of subacute bacterial endocarditis and to obtain information which will provide for its evaluation under the new rating criteria for cardiovascular disorders. All indicated testing in this regard should be accomplished and all findings should be reported in detail. The examining physician should be provided with a copy of the new rating criteria effective on January 12, 1998. The complete claims folder, including a copy of this remand order, should be reviewed by the examiner. Following examination of the veteran and review of the claims folder, the physician should comment as to the following: (a) whether it is at least as likely as not that the veteran's fatigue, weakness and shortness of breath are a result of his service-connected heart disease; (b) whether there is evidence of a definitely enlarged heart, diastolic murmur and arrhythmias; (c) whether the veteran is currently having angina, and, if so, the severity thereof; (d) whether his heart disease is such that more than light manual labor is precluded; and (e) whether his heart disease is such that more than sedentary employment is precluded. The examiner also must indicate the level of metabolic equivalent (MET) that the veteran is capable of, and comment on whether there is associated dyspnea, fatigue, angina, dizziness or syncope. A complete rationale for any opinion expressed must be provided. 5. After undertaking all development requested hereinabove, the RO should review the veteran's claims, to include consideration of both old and new rating criteria for cardiovascular disorders. If any benefit sought on appeal is not granted, the veteran and his representative should be issued a Supplemental Statement of the Case and be afforded a reasonable opportunity to reply thereto. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals 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 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. STEPHEN L. WILKINS Member, Board of Veterans' Appeals