Citation Nr: 0315315 Decision Date: 07/09/03 Archive Date: 07/17/03 DOCKET NO. 99-01 638 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Determination of proper initial rating for irritable bowel syndrome with psychogenic vomiting, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Trueba-Sessing, Counsel INTRODUCTION The veteran served on active service from May 1989 to April 1998. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. At present, after remand to the RO for additional development in December 2001, the case is once before the Board for appellate review. The Board notes that the veteran presented testimony during a hearing on appeal at the RO before the undersigned Veterans Law Judge (VLJ) in September 2001. A copy of the hearing transcript issued following the hearing is of record. FINDINGS OF FACT 1. The VA has fulfilled its duty to assist the veteran by obtaining and fully developing all relevant evidence necessary for the equitable disposition of the appeal. 2. Although the evidence documents the irritable bowel syndrome with psychogenic vomiting is characterized by diarrhea episodes occurring from three times per month to once per week, this disability cannot be characterized as "more or less constant" as the veteran's abdominal distress is resolved after each episode and is controlled with Dicyclomine. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for irritable bowel syndrome with psychogenic vomiting have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1- 4.14, 4.112, 4.113, 4.114, Diagnostic Code 7319 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board is satisfied that all assistance to the appellant by VA has been provided, as required by law regarding the issue addressed in this appeal. On November 9, 2000, the President signed the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5103A (West 2002); 66 Fed. Reg. 45,630-45,632 (Aug. 29, 2001) (codified as amended at 38 C.F.R. § 3.159), which modified the circumstances under which VA's duty to assist claimants applies, and how that duty is to be discharged. The law affects a case such as this because the claim was pending on the date of enactment of the new law. This law eliminates the concept of a well-grounded claim, redefines the obligations of VA with respect to the duty to assist, and supersedes the decision of the United States Court of Appeals for Veterans Claims (Court) in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, 14 Vet. App. 174 (2000) (per curiam order), which had held that VA cannot assist in the development of a claim that is not well grounded. The new law also includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. In August 2001, VA issued regulations to implement the VCAA. 66 Fed. Reg. 45,620 (Aug. 29, 2001) (codified as amended at 38 C.F.R. § 3.102, 3.156(a), 3.159 and 3.326(a)). The amendments were effective November 9, 2000, except for the amendment to 38 C.F.R. § 3.156(a) which is effective August 29, 2001. Except for the amendment to 38 C.F.R. § 3.156(a), the second sentence of 38 C.F.R. § 3.159(c), and 3.159(c)(4)(iii), VA stated that the provisions of this rule merely implement the VCAA and do not provide any rights other than those provided in the VCAA. 66 Fed. Reg. 45,620, 45,629 (August. 29, 2001). Accordingly, in general where the record demonstrates that the statutory mandates have not been satisfied, the regulatory provisions likewise are not satisfied. However, in this case, for the reasons set forth below, the VA has complied with the VCAA, as well as the recent implementing regulations. First, VA has a duty to notify the claimant and the representative, if any, of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. § 5103A (West 2002); 66 Fed. Reg. 45,630-45,632 (Aug. 29, 2001) (codified as amended at 38 C.F.R. § 3.159(b)); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The veteran has been informed of the evidence needed to prove the claim on appeal via the September 1998 rating decision, the December 1998 statement of the case, and the May 2001 and March 2003 supplemental statements of the case. Specifically, the veteran has been informed of the need to present evidence showing that his service-connected condition has worsened. Additionally, the veteran was scheduled for and underwent a VA examination in November 2002. Furthermore, via November 2001 and June 2002 correspondence, and in the March 2003 supplemental statement of the case, the veteran was given specific information with respect to the changes in the law and VA duties pursuant to the enactment of the VCAA. The notification requirement has therefore been satisfied. Secondly, VA has a duty to assist the claimant in obtaining evidence necessary to substantiate the claims. 38 U.S.C.A. § 5103A (West 2002); 66 Fed. Reg. 45,630-45,632 (Aug. 29, 2001) (codified as amended at 38 C.F.R. § 3.159(c)). In this case, all known and available relevant medical records, including the service medical records and additional VA medical records and examinations have been obtained and associated with the claims file. Furthermore, the appellant was given the opportunity to present testimony at a personal hearing before the undersigned Veterans Law Judge in September 2001. Thus, the duty to assist requirement has been satisfied as well. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). Essentially, the Board finds that VA has done everything reasonably possible to assist the veteran and that no further action is necessary to meet the requirements of the VCAA and the applicable regulatory changes published to implement that statue. Disability evaluations are determined by evaluating the extent to which the veteran's service-connected disability affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2002). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In addition, an appeal from the initial assignment of a disability rating requires consideration of the entire time period involved, and contemplates "staged ratings" where warranted. See Fenderson v. West, 12 Vet. App. 119 (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. See 38 C.F.R. § 4.7 (2002). In this case, in a September 1998 rating decision, the veteran was granted service connection and a 10 percent rating for irritable bowel syndrome with psychogenic vomiting, under Diagnostic Code 7319, effective May 1, 1998, the day following his discharge from service. At present he is seeking an increased initial rating for his disability in excess of 10 percent. With respect to the applicable law, during the pendency of this appeal in May 2001, effective July 2, 2001, VA amended portions of 38 C.F.R. § 4.114, the regulation governing ratings of the digestive system. 66 Fed. Reg. 29,488 (May 31, 2001) (codified as amended at 38 C.F.R. § 4.114). Under Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991), the version of the regulation most favorable to the veteran applies unless Congress provides otherwise. However, because the amendment did not change the particular code that is applicable to the veteran's claim, which is 7319, the Board need not analyze the claim pursuant to the revised portions of the regulation. There are diseases of the digestive system, particularly within the abdomen, which, while differing in the site of pathology, 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, as indicated in the instruction under the title "Diseases of the Digestive System," do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding as outlined in § 4.14. 38 C.F.R. § 4.113 (2002). The Board notes that ratings under Diagnostic Codes 7301 through 7329, inclusive, 7331, 7342, and 7345 to 7348 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 elevation. 38 C.F.R. § 4.114 (2002). Under Diagnostic Code 7319, a noncompensable evaluation is assigned for mild irritable colon syndrome with disturbance of bowel function and occasional episodes of abdominal distress. A 10 percent evaluation is warranted for moderate irritable colon syndrome with frequent episodes of bowel disturbance and abdominal distress. And, a 30 percent evaluation, the highest available under this code, is warranted if the disorder is severe, manifested by diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. See 38 C.F.R. § 4.114 Diagnostic Code 7319 (2002). In this case, the service medical records includes a February 1998 report of medical history showing the veteran was diagnosed with irritable bowel syndrome. The report also notes the veteran was treated at the Buffalo VA Medical Center for this disorder from 1996 to 1997, that he complained of gassiness and was taking Dicyclomine with results, and that his disability was not considered disabling. A July 1998 VA general examination report reflects the veteran complained of occasional pain in the region of the groin and gave a history of irritable bowel syndrome. He also complained of diarrhea when he was under stressful conditions or when he was anxious. He reported he developed watery stools on average about 10 to 12 times per day with no mucus or blood, and also developed vomiting. At this time, the veteran was taking Dicyclomine and complained of crampy abdominal pain relieved by the bowel movement when he had diarrhea. He further reported a history of constipation. However, the veteran was found to be well nourished, weighing 184 pounds at this time, in comparison to 163 pounds during the prior year. The veteran's diagnoses included irritable bowel syndrome with psychogenic vomiting. Medical records from the Buffalo VA Medical Center (VAMC) dated from 1996 to 1998 describe the treatment the veteran received for various health problems. Specifically, March 1997 notations reflect diagnoses of anxiety and psychogenic vomiting secondary to job related stress, and November 1997 notations show a diagnosis of adjustment disorder due to irritable bowel syndrome. A July 2000 VA digestive examination report shows the veteran was on Dicyclomine, 10 mg., three times per day. His symptoms at this time included occasional diarrhea and vomiting with no blood in his stool, occasional colicky abdomen, and increased flatulence. He denied a history of anemia, hernia or malignant disease. As well, a complete blood count (CBC) and lower gastrointestinal series were ordered which yielded no evidence of anemia. The veteran's diagnosis was irritable bowel syndrome with cyclic vomiting. An August 2000 Barium enema report shows no evidence of diverticular or annular constriction lesion, with no other significant findings on the post-void examination. The veteran was found to have a normal single contrast barium enema. Medical records from the Brecksville VA Medical Center (VAMC) dated from 1999 to 2002 include December 1999 notations showing a history of irritable bowel syndrome. October 2000 notations indicate the veteran was 30 years old with irritable bowel syndrome causing him to miss work at times due to diarrhea which occurred 3 to 4 times per month. He also had nausea, but no vomiting, bloody stools or abdominal pain. And, January 2001 notations reflect complaints of diarrhea with no bloody stool about three times per month which affects his work schedule. However, the veteran did not present evidence of loss of weight, but rather of gain, and of liquid stool about 2 to 5 times a day with cramps. His episodes reportedly occurred about three times per month and lasted about a day. The veteran's last VA examination was performed in November 2002. At this time, the veteran had a history of irritable bowel and had frequent episodes of recurrent nausea, vomiting and loose bowel movements until the present time. The veteran was employed at this time at the post office as a mechanic, and indicated he had not missed work for 90 days due to his disability. The objective evidence shows the veteran is 6 feet and 2 inches tall, weighs 205 pounds and had body mass index (BMI) of 27. At this time, he did not present signs of dehydration or anemia. His pupils reacted equal to light and accommodation, his stomach was soft and nontender with no guarding or tenderness to deep palpation, his bowel sounds were normoactive, and his muscle strength was full. The veteran was alert and cooperative. It was the examiner's conclusion that the veteran had occasional bouts of irritable bowel syndrome with diarrhea and queasy feelings which were alleviated with Dicyclomine 10 mg., 2 tablets per day. His episodes or incidents were about once a week, and usually stress related. Lastly, during the September 2001 travel Board hearing, the veteran testified that he had loose stools on a regular basis, but that he did not have constipation. He also indicated that he felt nauseous. At the time of the hearing, the veteran reported being employed and that his disability sometimes interfered with his employment, but that he had never been hospitalized for his disability. Applying the criteria of Diagnostic Code 7319 to the facts of this case, the Board finds that, by the veteran's own report, his irritable bowel syndrome is intermittent in nature and is accompanied by intestinal gas and cramps. However, the preponderance of the evidence does not show that the veteran's disability is characterized by more or less constant abdominal distress, as required for a 30 percent rating under Diagnostic Code 7319. Specifically, although the veteran's disability is reportedly characterized by diarrhea with some nausea/vomiting but no blood in his stool, his episodes occur from about three times per month to once a week, and are usually stress related. Additionally, the Board notes that the evidence does not show the veteran has suffered a considerable amount of weight loss, such as a loss greater than 20 percent of the individual's baseline weight sustained per three months or longer, per 38 C.F.R. § 4.112. Furthermore, as of his last VA examination in November 2002, the veteran is employed with the U.S. Postal Service as a mechanic and had not missed work for 90 consecutive days. At this time, he was found to weigh 205 pounds with a body mass index of 27. As well, the veteran's symptoms have been medically characterized as occasional bouts of irritable bowel syndrome with diarrhea and queasy feelings which were alleviated with Dicyclomine 10 mg., 2 tablets per day. In sum, although the medical evidence documents complaints of diarrhea episodes occurring from three times per month to once per week, the veteran's irritable bowel syndrome cannot be characterized as "more or less constant" as it appears that the veteran's abdominal distress is resolved after each episode and is controlled with Dicyclomine. Therefore, as the evidence fails to show that the veteran experiences more or less constant abdominal distress, an evaluation in excess of 10 percent under Diagnostic Code 7319 is not warranted at any time since the initial grant of service connection. The initial rating assigned for the veteran's irritable bowel syndrome with psychogenic vomiting is appropriate, and thus, the criteria for an initial rating in excess of 10 percent have not been met for any period during the pendency of the appeal. The preponderance of the evidence is against the veteran's claim, and the claim is denied. Under these circumstances, the doctrine of reasonable doubt is not for application. See 38 U.S.C.A. §§ 5103A, 5107(b); 66 Fed. Reg. 45,630-45,632 (Aug. 29, 2001) (codified as amended at 38 C.F.R. § 3.159); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Lastly, the potential application of various provisions of Title 38 of the Code of Federal Regulations (2002) have been considered whether or not they were raised by the appellant as required by the Court's holding in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The Board has considered whether an extra-schedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321(b)(1) (2002) is warranted. In the instant case, however, the evidence does not show that the above addressed service-connected disability causes marked interference with employment (i.e., beyond that contemplated in the currently assigned evaluations) or the need for frequent periods of hospitalization, or have otherwise rendered impracticable the application of the regular schedular standards. Specifically, the Board finds that the medical evidence of record simply does not show that the service-connected disability addressed in this decision, per se, is productive of marked interference with employment. In this respect, the law is clear that only those with specialized medical knowledge, training, or experience are competent to provide evidence on this issue. See Jones v. Brown, 7 Vet. App. 134, 137 (1994); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1991). To the extent that the claimant may experience functional impairment due to the service-connected disability addressed here, the Board finds that such impairment is contemplated in the currently assigned rating. With respect to the disability at issue, the applicable rating criteria contemplate higher ratings. However, the Board has not found the disability under consideration to be of such severity as to warrant the assignment of a higher rating on a schedular basis other than that indicated above. Likewise then, referral for consideration for extra-schedular evaluations is not warranted here. See Bagwell v. Brown, 9 Vet. App. 237, 239 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER The initial rating assigned for the veteran's irritable bowel syndrome with psychogenic vomiting is appropriate, and entitlement to an initial disability evaluation in excess of 10 percent is denied. ____________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.