Citation Nr: 0023750 Decision Date: 09/07/00 Archive Date: 09/12/00 DOCKET NO. 97-20 871 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an increased rating for Crohn's disease, currently rated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Bernie Gallagher, Counsel INTRODUCTION The veteran had active service from July 1988 to July 1991. This matter comes before the Board of Veterans' Appeals (the Board) from a rating decision in November 1995 by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied entitlement to an increased rating for the Crohn's disease. The veteran testified at a hearing at the RO in April 1997. A transcript of that hearing is in the claims folder. In May 1998, a rating action granted service-connection for depression secondary to the service-connected Crohn's disease, and assigned a separate 50 percent rating from February 1998. FINDING OF FACT The veteran's Crohn's disease is manifested by complaints of frequent daily diarrhea and abdominal discomfort with numerous attacks per year and malnutrition and only fair health during remissions. CONCLUSION OF LAW The criteria for a rating of 60 percent, but no higher, for the veteran's Crohn's disease have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.7, 4.114, Diagnostic Code 7323 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background. According to a Medical Board Report in February 1991, the veteran developed severe crampy abdominal pain, diarrhea and fever in service. Laboratory studies disclosed ulcerations of the terminal ileum consistent with Crohn's disease. He subsequently developed a small bowel obstruction secondary to colonic stricture. He underwent a right hemicolectomy and a distal ileal resection with reanastomosis. Pathology showed Crohn's disease. He continued to have crampy abdominal pain and diarrhea. He had a 20 pound weight loss during the course of his illness. It was recommended that he be discharged as a result of the Crohn's disease. A rating action in August 1991 granted service connection for Crohn's disease, and assigned a 30 percent rating. That rating has been in effect since July 1991. In April 1995, the veteran filed a claim for increase. He underwent TDRL evaluation in September 1995. He complained of six to eight loose watery bowel movements with urgency per day with some tenesmus. He had developed some constipation when he used Lomotil and developed stomach burning when he used Imodium. He also had a history of chronic dyspepsia which was worsened by stress. He developed symptoms of heartburn when recumbent. He was presently a student but frequently interrupted class for urgent bowel movements. A colonoscope to the terminal ileum in 1994 revealed a mild small bowel inflammation with few ulcers, but no evidence of obstructive disease. There was no evidence of colon involvement or friability. His hemoglobin and hematocrit were within normal limits. The final diagnosis/recommendation was that the Crohn's disease was currently quiescent except for chronic diarrhea which had not been responsive to diet changes. The examiner found no evidence of malabsorption to suggest that the veteran had gluten intolerance. He believed the veteran would benefit from long term Pentasa. He opined that the veteran had at least a 20-40 percent chance of a significant Crohn's flare-up in the next five years, and a 50 percent likelihood of requiring repeat surgery. It was unlikely he would be able to return to work and his employability would be somewhat suspect with the current activity of his disease and the frequency of the diarrhea. VA outpatient records disclose that the veteran was seen regularly from 1993 to 1997. A colonoscopy in March 1994 disclosed mildly active Crohn's disease. In July 1994, he was seen with complaints of stomach cramps and depression. In September 1994, he complained of headaches. He weighed 130 pounds. His height was five feet ten inches. In December 1994, he was seen with complaints of diarrhea and cramping with headaches. On examination, the stool was negative guaiac. Prednisone was prescribed. Blood tests showed no evidence of anemia. A barium enema in December 1994 revealed no evidence of Crohn's disease. In April 1996, the veteran was seen with complaints of diarrhea and fatigue. He weighed 130 pounds. In July 1996, he complained of diarrhea (watery stool), constant headaches, fatigue, and pain in the legs. He weighed 119 pounds. It was reported the last time he was there, he weighed 135 pounds. He was referred to the GI clinic and the dietary clinic. He had a flare- up of Crohn's disease in June 1996. When seen in August 1996, he had continued complaints of diarrhea and cramping. In October 1996, he described "bad" diarrhea for the past two days. In April 1997, the veteran was seen with complaints of increased diarrhea for two weeks. He was having 8 bowel movements of diarrhea a day with crampy abdominal pain. In May 1997, he was seen by a consultant with complaints of diarrhea. His weight was 129 pounds. The assessment included rule out active Crohn's. A colonoscopy later in May revealed a normal colon to the anastomosis and active ulcerations at the terminal ileum. The impression was active Crohn's ileitis. In June 1997, in view of the active disease and increased diarrhea, Prednisone was increased. He had a flare- up in February 1998. The veteran testified at a hearing at the RO in April 1997. He stated that he suffered from daily diarrhea and cramping with 7-8 stools a day. He denied constipation. He claimed a severe fluctuation in his weight and submitted photographs taken while in service when he was healthy. He stated that he was 126 pounds last week and that he had been 154-160. He received treatment at a VA outpatient clinic. He claimed he had dropped out of school twice as a result of his condition and he claimed it was getting worse. He avoided spicy foods. He took Insure as a dietary supplement. He claimed the diarrhea effected his job at a teller machine, which he only held for two months. He now had no energy to work out. He claimed that stress increased his symptoms. The veteran received a VA examination for digestive conditions in May 1998. It was reported he took several medications for his gastrointestinal condition. At this time he was a student at the University of Alabama. The side effects of his medication resulted in fatigue and he was unable to function when he took medications for Crohn's disease. At this time he weighed 129 pounds. He weighed 135 pounds a year ago. He complained of loose bowels up to ten a day. At night time he had to get up six or seven times for bowel movements. On examination, he weighed 129 pounds. The diagnostic impression was Crohn's disease, recurrent flare-ups. Last GI consult in 1997 at Birmingham Medical Center showed active Crohn's disease. The examiner stated the veteran had been depressed and it had been upsetting to him because he could not plan any kind of program. He was in the disabled student program at the University of Alabama. He was unable to take tests because of diarrhea As a result, he had become depressed. The Crohn's disease had been having a negative impact on his life. He had been unable to pursue his studies. He had been lagging behind because of the Crohn's disease. Laboratory tests disclosed no evidence of anemia. The sedimentation rate was normal which indicated the disease was in remission. Legal Analysis. The first responsibility of a claimant is to present a well- grounded claim. 38 U.S.C.A. § 5107(a) (West 1991). A claim for an increased disability rating is well grounded if the claimant alleges that a service-connected condition has worsened. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). In this case, the veteran has complained of increased disability as a result of his service-connected Crohn's disease and therefore he has satisfied the initial burden of presenting a well-grounded claim. VA has a duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103 (1998). The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In this case the RO obtained relevant current medical records, provided the veteran a VA examination and provided an opportunity for him to testify at a personal hearing. There is no indication of additional medical records that the VA failed to obtain. Therefore, VA has satisfied its duty to assist the veteran mandated by 38 U.S.C.A. § 5107. Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.7 provides that, where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. These requirements for evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decisions based on a single, incomplete or inaccurate report and to enable VA to make a more precise evaluation of the level of the disability and of any changes in the condition. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Moreover, VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. The RO has rated veteran's Crohn's disease under Diagnostic Code (DC) 7323 for, "Colitis, ulcerative". Under DC 7323, a 30 percent rating is warranted when the colitis is moderately severe, with frequent exacerbations. The next higher evaluation, 60 percent, requires severe ulcerative colitis with numerous attacks per year, and malnutrition, and with health being only fair during remissions. A 100 percent evaluation is provided where the condition is pronounced with marked malnutrition, anemia, and general debility, or with serious complications such as liver abscesses. In evaluating the service-connected Crohn's disease, the Board has considered the veteran's contentions and testimony, the extensive VA outpatient records, the TDRL evaluation report and the report of the May 1998 VA examination. These records show persistent complaints of abdominal distress and very frequent diarrhea over several years duration as well as recurrent flare-ups of Crohn's disease in which the symptoms increase in severity. Further, the veteran's current weight and the fact that he is prescribed dietary supplements are consistent with the existence of malnutrition secondary to Crohn's disease. Finally, his testimony with regard to his difficulties working and studying, as well the clinically noted fatigue, are consistent with only fair health during remissions. With application of the benefit of the doubt rule, the Board finds that the veteran more nearly meets the criteria for a 60 percent rating. However, the Crohn's disease does not cause marked malnutrition, anemia, debility or serious complications such as liver abscesses as to warrant a still higher rating. ORDER An increased rating for Crohn's disease to 60 percent is granted, subject to the criteria that govern the payment of monetary awards. NANCY I. PHILLIPS Member, Board of Veterans' Appeals