Citation Nr: 0631203 Decision Date: 10/04/06 Archive Date: 10/10/06 DOCKET NO. 03-29 996 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUE Entitlement to a disability rating in excess of 30 percent for ulcerative colitis (Crohn's disease). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD David A. Saadat, Counsel INTRODUCTION The veteran had active military service from July 1958 to November 1962. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a May 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied the benefit sought on appeal. This case was previously before the Board and remanded in March 2006 for additional development. In the veteran's "Statement of Accredited Representative in Appealed Case," dated in October 2005, he presented contentions that he currently had a skin disorder and joint pain as a result of medications taken for his service- connected Crohn's disease. These claims were denied by the RO in a June 2004 rating decision, which was mailed to the veteran in July 2004. To the extent that the veteran may wish to continue those claims, they are not properly before the Board at this time and are referred back to the RO for any appropriate action. FINDING OF FACT The veteran's ulcerative colitis (Crohn's disease) is manifested by occasional outpatient visits for complaints of abdominal cramps and pain, diarrhea, constipation, and gas; however, the preponderance of the evidence shows that this condition is not manifested by severe symptoms, numerous attacks every year, malnutrition, or only fair health during remissions; the veteran has never been hospitalized for ulcerative colitis, nor have his gastrointestinal symptoms impacted his ability to work to such an extent that would warrant consideration of an extraschedular rating. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for ulcerative colitis (Crohn's disease) have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.114, Diagnostic Code 7323 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to notify and assist Proper notice must be provided to a claimant before the initial VA decision on a claim for benefits and must: (1) inform the claimant about the information and evidence not of record necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). In an April 2003 letter, VA clearly advised the veteran of the first, second, and third elements required by Pelegrini II. That is, the veteran was informed that evidence was needed that shows that his service-connected ulcerative colitis increased in severity. The veteran was also informed of his and VA's respective duties for obtaining evidence. Notably, this letter was sent prior to the initial adjudication of his claim in a May 2003 rating decision. The veteran has never been explicitly asked to provide "any evidence in [his] possession that pertains" to his claim, but he has effectively been notified of the need to provide such evidence. For example, the April 2003 letter contained these sentences: "It's still your responsibility to support your claim with appropriate evidence. ... As we consider your claim, you may submit evidence showing that your service- connected Ulcerative Colitis has increased in severity." In a June 2006 letter, VA advised the veteran that "[i]f you have any information or evidence that you have not previously told us about or given to us, and that information or evidence concerns the level of your disability ... please tell us or give us that evidence now." Under these circumstances the veteran has effectively been informed of the need to submit relevant evidence in his possession. In its June 2006 letter, VA specifically notified the veteran about disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Although this particular notice was provided after the initial adjudication of the veteran's claim, he was not prejudiced thereby because this was harmless error. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). VA has satisfied its notice requirements and has adjudicated and readjudicated the claim for increased rating during this appeal (in a May 2003 rating decision, a September 2003 statement of the case, and a July 2004 supplemental statement of the case). Remanding this case simply for another readjudication following the June 2006 letter would only serve to delay a Board decision on the merits. Relevant VA treatment records have been obtained, as has the transcript of the veteran's November 2005 Board hearing. At this hearing, the veteran indicated that he had recently been treated in a VA outpatient setting and he was advised that the Board would seek records of this treatment. At the hearing, he explicitly waived prior RO consideration of these treatment records (and this evidence was associated with the claims file in March 2006, following the Board remand). It is unclear whether a supplemental statement of the case was issued following receipt of these records. A document entitled "AMC Remand" suggests that a supplemental statement of the case was issued in June 2006, but the actual supplemental statement of the case is not in the claims file. Additionally, that document does not contain any information associating it with this particular case and in fact lists a different representative. In any case, since the veteran waived prior RO consideration of this evidence at his hearing, further delay of resolution of this appeal by remanding for a supplemental statement of the case is unnecessary. See 38 C.F.R. § 20.1304(c). The Board notes that in July 2006, the representative of record provided a written brief containing arguments in support of the veteran's appeal. The veteran underwent VA examinations in May 2003 and April 2004, and the reports of these examinations have been obtained. As detailed below, the claims file contains sufficient documentation concerning the current state of the veteran's Crohn's disease and remanding this case so that yet another VA examination can be conducted is simply not necessary. Neither the veteran nor his representative has indicated that there are outstanding records pertaining to the claim and, in fact, in a statement received by VA in April 2006, the veteran indicated that there was no other new medical information at this time. In short, the Board finds that the duty to notify and assist the veteran under the VCAA were satisfied, and additional development would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). Thus, the Board will proceed with appellate review. II. Claim for increased rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. The veteran seeks a rating in excess of 30 percent for ulcerative colitis. A 100 percent rating for ulcerative colitis requires pronounced symptoms, resulting in marked malnutrition, anemia, and general debility, or with serious complication as liver abscess. A 60 percent rating requires severe symptoms, with numerous attacks a year and malnutrition, and health only fair during remissions. A 30 percent rating requires moderately severe symptoms with frequent exacerbations. 38 C.F.R. § 4.114, Diagnostic Code 7323. The veteran's ulcerative colitis is occasionally symptomatic. VA records reflect that he sought outpatient treatment approximately 15 times for complaints relating to this condition between February 2002 and February 2006. His reported symptoms have included abdominal cramps, occasionally sharp pain in the right lower quadrant, having approximately four loose bowel movements per day, occasional bouts of diarrhea (particularly after breakfast), constipation, and gas. The veteran has expounded on his symptoms (and the inconveniences they cause) in written statements filed in August 2003, December 2005, January 2006, and April 2006. At his November 2005 Board hearing, he complained of cramping in his lower stomach and his right lower quadrant. He said his "guts are growling all the time" and that he felt as if he had to have a bowel movement even if he did not actually have to evacuate. He also complained of constipation and gas. He described having a sharp pain in his right lower quadrant lasting several days. The pain would fade after a while and did not correlate to bowel movements. He said he usually moved his bowels (typically diarrhea) three to four times a day. It was worst in the morning after breakfast, and the condition's severity receded during the day. His spouse confirmed his symptoms (particularly the complaints of pain) and the fact that the condition hampered their ability to dine outside of the home. The clinical evidence, while confirming that the veteran has occasionally sought treatment for his gastrointestinal symptoms, simply does not reflect the severe symptoms that merit a 60 percent rating under Diagnostic Code 7323. Assuming that each outpatient visit specifically for complaints of ulcerative colitis resulted from an "attack" of the condition, the veteran had fewer than four attacks a year between 2002 and 2006. While this frequency is not insignificant, it seems more akin to the "frequent exacerbations" of the current 30 percent rating rather than the "numerous attacks" of the 60 percent criteria. On this point, the veteran has argued (such as in an August 2003 statement) that he does not visit the doctor every time he feels bad or sick and that he finds it difficult, particularly in light of his continued employment, to drive the 50 miles each way for VA treatment. However, the claims file is replete with records of outpatient treatment for other conditions (unrelated to ulcerative colitis) during this appeal, and the veteran did not complain of gastrointestinal symptoms during these visits. The veteran appeared initially reluctant to take medication for his condition (as reflected in outpatient records dated in February 2002 and November 2002). However, he began taking medication after being assessed as having mildly symptomatic Crohn's disease in January 2003. Although the veteran has had some occasional flare-ups in the recent past, as reflected by records in December 2005 and January 2006, more commonly the medical evidence (such as records dated in April 2003, July 2003, September 2003, April 2004, August 2005, January 2006, and February 2006) reflects a marked improvement - or at least stability - in the Crohn's disease specifically due to medication. For example, August 2005 and February 2006 records each contain a diagnosis of Crohn's disease that is stable with maintenance therapy with Asacol. There is no evidence that the veteran has suffered from malnutrition due to ulcerative colitis. In fact, at a February 2002 outpatient visit he reported that he had gained weight. In an August 2003 statement, he denied being emaciated. At his May 2003 VA examination, he reported that he had not experienced any recent weight loss or gain. At a December 2003 outpatient visit he reported that he had a good appetite, and at a March 2005 mental health visit he reported having an "adequate intake of a variety of foods." In November 2005 he testified that he had lost about 25 pounds in the prior eight months. Yet the clinical record shows no such pattern of drastic weight loss: he weighed 167 lbs. in January 2005, 167.1 lbs. in February 2005, 163.7 lbs. in August 2005, and 164.8 lbs in December 2005. These figures reflect a net weight loss of only 2.2 lbs. In an April 2004 VA examination, the veteran reported experiencing diarrhea if he ate breakfast, but not other meals. It was noted that medicine controlled his gastrointestinal inflammation. Nothing indicates that the veteran has a liver abscess, including the results of a UGI series performed in February 2005. While he began treatment for pernicious anemia in March 2005, no medical professional has specifically related this laboratory finding to the veteran's service-connected ulcerative colitis. Regardless, this anemia is not accompanied by the marked malnutrition, general debility, or liver abscess required for a 100 percent rating under Diagnostic Code 7323. The RO considered entitlement to an extraschedular rating in its June 2004 supplemental statement of the case. When the disability picture is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the veteran for service-connected disabilities, an extraschedular evaluation will be assigned. 38 C.F.R. § 3.321(b)(1). Yet the veteran has never been hospitalized for ulcerative colitis, nor have his gastrointestinal symptoms impacted his ability to work to the extent that would warrant an extraschedular rating. Indeed, he has maintained steady employment (as a delivery person) throughout this appeal. The Board acknowledges the veteran's complaints that his ulcerative colitis interferes with his job as a delivery person because he works in a rural area and its difficult to locate a toilet facility when necessary. However, despite the difficulties described by the veteran, there is no indication that he has lost time from work due to this service-connected disability, beyond that degree of impairment already contemplated by the 30 percent rating. In the April 2004 VA examination, it was noted that the veteran worked for 23 years as a delivery driver, and was working regularly. Although a December 2005 medical record suggests that the veteran may have lost about 3 days of work related to his Crohn's disease, there is no evidence of record that the veteran lost such a substantial amount of time from work that the regular schedular criteria are inadequate to evaluate his level of disability. In that regard, the Board emphasizes that the purpose of the VA rating schedule is to consider impairment in earning capacity. 38 C.F.R. § 4.1. Additionally, the degrees of disability are considered generally adequate to compensate for considerable loss of working time. Id. In the present case, despite the adverse impact that the veteran's disability may have on his current job as a delivery driver, particularly as described by the veteran, the evidence does not demonstrate that the rating criteria are inadequate to evaluate his disability, and referral of this claim for consideration of an extra- schedular rating is not warranted. In summary, for the reasons discussed above, the preponderance of the evidence reflects that a rating in excess of 30 percent for ulcerative colitis is not warranted and the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b). ORDER A rating in excess of 30 percent of ulcerative colitis (Crohn's disease) is denied. ____________________________________________ LAURA H. ESKENAZI Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs