Citation Nr: 0001434 Decision Date: 01/18/00 Archive Date: 01/27/00 DOCKET NO. 97-33 722A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an increased (compensable) evaluation for hepatitis. 2. Entitlement to an increased (compensable) evaluation for postoperative residuals of a right mastectomy. 3. Entitlement to a 10 percent evaluation based on multiple, noncompensable service-connected disabilities under the provisions of 38 C.F.R. Section 3.324. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The appellant and his spouse ATTORNEY FOR THE BOARD William W. Berg, Counsel INTRODUCTION The veteran served on active duty from October 1941 to October 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, that denied compensable evaluations for service- connected hepatitis and postoperative residuals of a right mastectomy. The RO also denied entitlement to a compensable evaluation under the provisions of 38 C.F.R. § 3.324. The matter is now before the Board for final appellate consideration. In his substantive appeal received in April 1998, the veteran maintained that ever since the right mastectomy, his right shoulder and right arm were numb. He stated that he wore a support on his right wrist and could not drive because of this. In a written argument dated in December 1999, the veteran's representative raised the claim of entitlement to service connection for a right shoulder disorder secondary to the service-connected postoperative residuals of a right mastectomy. This issue has not been developed for review on appeal, and is referred to the RO for appropriate action. A rating decision dated in February 1998 denied service connection for residuals of a shrapnel wound of the right third finger. The veteran has been rated permanently and totally disabled for pension purposes since January 1974, based on chronic undifferentiated type schizophrenia and osteoarthritis of the right knee, sacral region, and right hand. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of this appeal has been obtained. 2. The service-connected hepatitis is currently nonsymptomatic. 3. The service-connected postoperative residuals of a right mastectomy, including the postoperative scar, are currently nonsymptomatic. 4. Although the veteran has two separate noncompensable service-connected disabilities, it is not shown that they are of such character as clearly to interfere with normal employability. CONCLUSIONS OF LAW 1. The criteria for an increased (compensable) evaluation for hepatitis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.114, Diagnostic Code 7345 (1999). 2. The criteria for an increased (compensable) evaluation for postoperative residuals of a right mastectomy, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.116, 4.118, Diagnostic Codes 7626, 7805 (1999). 3. A compensable evaluation for two separate service- connected noncompensable disabilities under the provisions of 38 C.F.R. § 3.324 is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 3.324 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a preliminary matter, the Board finds that the veteran's claims are plausible and thus well grounded within the meaning of 38 U.S.C.A. § 5107(a); see Proscelle v. Derwinski, 2 Vet. App. 629 (1992) (a claim of entitlement to an increased evaluation for a service-connected disability generally is a well-grounded claim). The Board is satisfied that all relevant evidence has been obtained with respect to these claims and that no further assistance to the veteran is required in order to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41 and 4.42 (1999), 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 service-connected disabilities at issue on this appeal. The Board has found nothing in the historical record that would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where the issue is entitlement to an increased rating following the filing of a reopened claim, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The evidence in closest proximity to the recent claim is the most probative in determining the current extent of impairment. Id. It is maintained by and on behalf of the veteran that his service-connected hepatitis and postoperative residuals of a right mastectomy are more severely disabling than currently evaluated. The veteran contends that part of his liver was removed due to his service-connected hepatitis and that as a result, his diet is restricted due to gastrointestinal problems. He further contends that the scar for the right mastectomy is tender, that it itches, and that when he scratches it, he causes it to bleed. He claims that he has problems with burning and itching in the area of the mastectomy surgical scar and tenderness along the site of the surgical scar. It is therefore felt that a separate compensable evaluation for the surgical scar is warranted. A rating decision dated in October 1945 granted service connection for chronic hepatitis and for a healed scar of the right breast. Ten percent evaluations were assigned for each service-connected disability. However, following a VA examination in April 1947, each of these evaluations was reduced to zero percent, effective from August 15, 1947. Although the veteran was informed of this determination in a letter dated in June 1947, he submitted no evidence to contest the determination and did not initiate an appeal therefrom. The noncompensable evaluations for the service- connected hepatitis and postoperative residuals of a right mastectomy have been in effect ever since. The veteran reopened his claim for increased ratings in August 1996. A. Hepatitis On VA examination in April 1997, the veteran claimed that about one third of his liver had been removed due to hepatitis, with resulting liver damage relating to the surgery. The record shows, however, that while the veteran underwent surgery following service for an unrelated disorder, there is no indication that he had any part of his liver removed as a result of his service-connected hepatitis. On examination, the veteran complained of severe indigestion, and indicated that he had to avoid any type of spicy foods. He stated that in the previous three to four years, he experienced increasing fatigue, and that even with good sleep, he would awaken tired and remain tired all day. The veteran stated that he had increased anxiety feelings and had been treated by the psychiatric department of a VA facility for the previous few years. The examiner indicated that the veteran was discharged from the clinic the previous fall because he no longer required treatment. On physical examination, the veteran weighed 204 pounds. He indicated that earlier that year he weighed 218 pounds, but no quick weight loss was noted. An inspection of the abdomen showed an abdominal scar secondary to a surgery. The abdomen was soft, and slight tenderness throughout the whole abdomen was noted. There was no organomegaly. Active bowel sounds were present. The only abdominal discomfort was a slight general tenderness throughout the abdomen. The veteran stated that after eating, he would develop nausea daily, and about once a week would vomit. No anorexia was noted, however. He complained of increased fatigue over the last three to four years. The examiner noted that on review of the outpatient clinical record and the claims file, there was no indication that the veteran was being treated for, or had complained of fatigue, gastrointestinal distress, vomiting or any of the problems associated with liver damage. The veteran's strength was good throughout his body, and no muscular atrophy was noted. He ambulated well without problems. The only general weakness was what he described as fatigue. The examiner stated that a hepatitis panel had been done and was "nondetectable, nonreactive throughout". Liver function testing showed total protein of 7.4, albumin of 4.5, total bilirubin of 1.1, alkaline phosphatase at 49, SGOT of 30, SGPT of 20, AG ratio of 1.6, and globulin of 2.9. The examiner said that the only abnormality was the total bilirubin, with the normal range from 0.2 to 1. The diagnosis was history of hepatitis. A compensable evaluation for hepatitis is warranted under the rating schedule where demonstrable liver damage with mild gastrointestinal disturbance is shown. Healed, nonsymptomatic hepatitis warrants only a noncompensable evaluation. 38 C.F.R. § 4.114, Diagnostic Code 7345. However, there is no showing of a chronically active hepatitis currently, nor is any demonstrable liver damage or mild gastrointestinal disturbance attributable to the service-connected hepatitis demonstrated. Indeed, on recent VA examination, the examiner noted that a hepatitis panel was essentially within normal limits, and hepatitis was diagnosed only by history. A 30 percent evaluation under Diagnostic Code 7345 requires minimal liver damage with associated fatigue, anxiety, and gastrointestinal disturbance of lesser degree and frequency, but necessitating dietary restriction or other therapeutic measures. It is notable in this case, however, that the veteran has nonservice-connected chronic undifferentiated type schizophrenia, as well as other nonservice-connected disabilities. The fatigue and anxiety of which he complains has not been attributed by the examiner to his service- connected hepatitis. The veteran, as a lay person, is competent to describe his symptoms but not to attribute those symptoms to a specific disease entity such as chronic hepatitis, as this requires medical expertise. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). It is significant that the veteran had been treated over the last several years by the VA psychiatric department for his complaints of anxiety, which were not attributed to his service-connected hepatitis. The service-connected evaluation may not be based on symptoms that do not result from the service-connected disability. 38 C.F.R. 4.14 (1999). It follows that a compensable rating for service-connected hepatitis is not warranted. B. Right mastectomy The veteran's service medical records show that he was hospitalized in August 1942 for complaints that included a hypertrophied right breast. It was reported that the right breast began increasing in size the previous October and had continued to increase gradually in size. It was further reported that at times there had been blood discharged from the nipple. In late August 1942, the veteran underwent surgery for the enlarged breast. The operation reports states that an elliptical incision was made over the right breast, and a simple mastectomy was performed. There was no evidence of malignancy. Bleeding points were clamped and ligated. Subcutaneous tissue was closed, the skin was closed, and the veteran left the operating room in good condition. The final summary indicates that the right breast was "amputated" and that some serous discharge occurred following the operation and required opening of the suture line to facilitate drainage. The veteran was discharged to duty on September 15, 1942. However, the veteran was readmitted to a service hospital on September 16, 1942, for moderately severe acute right mastitis. An examination showed swelling, tenderness, and induration at the site of the previous right mastectomy. A few days following admission, serosanguineous exudate under the deep fasciae of the right breast following postoperative removal of the breast. The exudate was aspirated with a needle that was introduced down below the deep fasciae. Only a small amount of serosanguineous fluid, about two cubic centimeters, was obtained. Because of the slight amount of fluid, the skin was not incised, and the surgeon was of the opinion that there would be complete absorption without the necessity of draining. A few days following the procedure, the veteran felt much better, and the tenderness in his right breast was subsiding. It was reported that he was much improved after drainage of the swollen site of the right mastectomy. He was discharged to duty on September 30, 1942, without complaints. The breast was noted to be healed. The veteran was given a Certificate of Disability for Discharge in October 1945 for chronic nonamebic hepatitis that rendered him unfit for military service because of severe pain due to the hepatitis, nausea and vomiting. On VA examination in April 1947, it was reported that his breast had not bothered him since separation from service. The veteran had an incisional (surgical) 4-inch scar over the right nipple line that was nonadherent and nonsymptomatic. When examined by VA in June 1974, a well-healed 4-inch right mastectomy scar from the veteran's simple mastectomy was noted. It was reported that there were no recurrences and no complaints. The pertinent diagnosis was that there were no residuals of the right simple mastectomy. On VA examination in April 1997, the mastectomy scar was described as 31/2 inches in length and half an inch in diameter. The scar crossed the midclavicular line. The incision site, the scar itself, was vertical through the area where the nipple would have been. The nipple had been removed. The areola had been removed. The scar was not tender to touch; in fact, there was a slight numbness to the scar itself. There was very little difference in size between the left chest wall and the right chest wall. The examiner described the surgery as nonradical. He said that the claims file had been reviewed and that the diagnosis was history of right mastectomy. Under the rating schedule, a 30 percent evaluation is for application following a simple mastectomy, or wide local excision, of one breast with significant alteration of size or form. However, following wide local excision of one breast without significant alteration of size or form, a noncompensable evaluation is for assignment. 38 C.F.R. § 4.116, Diagnostic Code 7626. For VA purposes, a simple (or total) mastectomy means removal of all of the breast tissue, nipple, and a small portion of the overlying skin, but lymph nodes and muscles are left intact. Note (3) following 38 C.F.R. § 4.116, Diagnostic Code 7626. A wide local excision (including partial mastectomy, lumpectomy, tylectomy, segmentectomy, and quadrantectomy) means removal of a portion of the breast tissue. Note (4) following 38 C.F.R. § 4.116, Diagnostic Code 7626. Although the veteran's mastectomy has been referred to as a simple mastectomy, his actual surgery in service, including the residuals thereof, appears to more readily describe a wide local excision as defined for VA purposes. There does not appear to have been removal of all of the breast tissue on the right, and therefore a simple mastectomy, as defined by pertinent provisions of the rating schedule, does not appear to have been performed. Moreover, recent VA examination findings show that there is very little difference in size between the left chest wall and the right chest wall. A compensable evaluation under Diagnostic Code 7626 is therefore not warranted. The record shows that the post surgical scar has been found to be nonadherent. For rating purposes, therefore, the surgical scar is superficial. The question arises whether a compensable evaluation may be granted under Diagnostic Code 7803 for a superficial, poorly nourished scar with repeated ulceration, or under Diagnostic Code 7804 for a superficial scar that is tender and painful on objective demonstration. However, the examination findings have been relatively consistent for many years and show a right mastectomy scar that is essentially asymptomatic. The scar is well healed and was not found to be tender and painful on recent objective examination. Indeed, the diagnosis was history of right mastectomy. It follows that a separate compensable evaluation for the surgical scar as a postoperative residual of the right mastectomy under Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994), is not warranted. C. Compensable evaluation under 38 C.F.R. § 3.324 The only disabilities for which service connection currently is in effect are those discussed above. Although they have been rated noncompensably disabling, the question remains whether they are of such character as clearly to interfere with normal employability, which is the standard set forth in 38 C.F.R. § 3.324. The Board notes that the veteran was found to be unemployable for pension purposes by a rating decision dated in August 1974, a finding that was based on the residual effect of nonservice-connected psychiatric and orthopedic disabilities on the veteran's capacity to work. At the time that a permanent and total disability rating for pension purposes was granted, the veteran's service-connected disabilities were both rated noncompensably disabling. There is nothing in the current medical evidence to show that the service- connected disabilities are of such a character as to constitute clear interference with normal employability. This is especially the case in view of the fact that both disabilities were diagnosed only by history on VA compensation examinations in April 1997. The Board therefore concludes that the preponderance of the evidence is against the claim of entitlement to a compensable rating under the provisions of 38 C.F.R. § 3.324. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). ORDER An increased (compensable) evaluation for hepatitis is denied. An increased (compensable) evaluation for postoperative residuals of a right mastectomy, to include the surgical scar, is denied. A compensable evaluation for multiple service-connected disabilities under the provisions of 38 C.F.R. § 3.324 is denied. ROBERT E. SULLIVAN Member, Board of Veterans' Appeals