Citation Nr: 0711319 Decision Date: 04/17/07 Archive Date: 05/01/07 DOCKET NO. 04-30 837 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to an initial rating in excess of 30 percent for Crohn's disease. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Heather M. Gogola, Associate Counsel INTRODUCTION The veteran served on active duty from January 1989 through March 1989. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston Massachusetts. FINDINGS OF FACT The veteran's Crohn's disease is not analogous to severe ulcerative colitis with numerous attacks a year and malnutrition, the health only fair during remissions. CONCLUSION OF LAW The criteria for an evaluation in excess of 30 percent for Crohn's Disease are not met. 38 U.S.C.A. §§ 1155, 5107, 5103, 5103A, (West & Supp. 2005); 38 C.F.R. §§ 4.7, 4.14, 4.20, 4.113, 4.114, Diagnostic Codes 7323 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION Under the Veterans Claims Assistance Act of 2000 (VCAA), VA is required to notify the veteran of any evidence that is necessary to substantiate her claim. This includes notifying the veteran of the evidence VA will attempt to obtain and that which the veteran is responsible for submitting. Proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his possession that pertains to the claim. See 38 C.F.R. § 3.159 (2006). These notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability; a connection between the veteran's service and the disability; degree of disability; and the effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits is issued by the agency of original jurisdiction. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The RO sent a letter to the veteran in March 2003, (prior to the June 2003 grant of service connection). This letter adequately informed the veteran of the type of evidence and information necessary to substantiate the claim of service connection for Crohn's disease. The letter, however, did not provide notice of the type information and evidence necessary to establish a disability rating or an effective date. Thus, there was a notice error in this case. In Dunlap v. Nicholson, No. 03-320 (U.S. Vet. App. Mar. 22, 2007), the Court held that when an original claim for service connection is granted and the veteran is appealing the initial disability rating, prejudice is not presumed when there is first-element notice error regarding the information and evidence necessary to warrant entitlement to a higher evaluation. The burden is on the veteran to assert with specificity how the notification error was prejudicial or affected the essential fairness of the adjudication. In the present case, the veteran has not asserted any reason why VA's failure to provide first-element notice with respect to her disagreement with the initial rating has prejudiced her. Additionally, since the veteran's June 2003 rating decision granting service connection for Crohn's disease, the veteran has substantially participated in the appeals process. She has submitted statements, as well as numerous private medical records and medical opinions regarding her condition. Also, the veteran received a Statement of the Case dated June 2004, and a Supplemental Statement of the Case dated July 2006, which outlined the legal criteria for an increased rating for Crohn's disease. The veteran responded by sending in additional medical records and opinions. Finally, the RO sent a letter to the veteran dated February 2007 informing her of the type of information and evidence necessary to establish a disability rating and an effective date, to which the veteran had an opportunity to respond. In sum, the Board finds that the notice error did not affect the essential fairness of the adjudication. There has been no prejudice from the notice error. The veteran had an opportunity to participate effectively in the processing of her claim. The Board further notes that the veteran's service medical records, VA records, and private medical records have been obtained. The veteran was also provided with a VA examination for her Crohn's disease. Additionally, the veteran submitted statements regarding her condition. The veteran has not identified any further evidence with respect to her claim, and the Board is similarly unaware of any such evidence. Given the foregoing, the Board concludes that the duty to assist has been fulfilled. The Board is satisfied that the originating agency properly processed the claim after providing the required notice and assistance, and that any procedural errors in the development and consideration of the claims by the originating agency were insignificant and non-prejudicial to the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Analysis Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the question for consideration is entitlement to a higher initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1994). When an unlisted condition is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. 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. Ratings under Diagnostic Codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 inclusive 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. The veteran contends that her service-connected Crohn's disease should be rated more than 30 percent disabling. Specifically, she asserts that she had not been able to obtain employment due to her symptoms and doctor's visits to maintain the disease. During the veteran's basic training, in January 1989, she developed symptoms or recurrent right lower quadrant discomfort associated with cramping, abdominal discomfort, and recurrent diarrhea, including diarrhea with frank blood in the stool. After multiple sick calls with similar symptoms, the veteran was given diagnosis of right lower quadrant discomfort of undetermined etiology, and was ultimately medically discharged. Subsequent to her discharge, the veteran's symptoms became more severe and included recurrent fever. A March 1991 colonoscopy revealed a limited colonoscopy secondary to a question of stenosis at splenic flexure and with changes consistent with aphthous colitis which would indicate inflammatory bowel disease. A March 1991 discharge summary indicated that the veteran was admitted to the hospital with complaints of abdominal pain, with diarrhea but no vomiting. Abdominal x-rays performed were negative, and CT scans only showed a questionable thickening of distal ileum. The veteran was provided with a diagnosis of Crohn's disease. The veteran was afforded RO hearings in December 1992, and January 1994, in conjunction with her claim for service connection. The veteran described her symptoms as severe abdominal pain with a high fever resulting in hospital admission in March 1991. Medical records from Central Vermont Hospital dated December 1991 through February 1996 reveal symptoms of Crohn's disease lasting approximately two to five days, including abdominal cramps, pain, diarrhea, nausea without vomiting, pain worsening with eating, blood in stool, constipation, and tenderness in the right lower quadrant. A VA examination dated March 2003, provided in conjunction with the veteran's claim for service connection revealed that after the veteran's diagnosis of Crohn's disease in 1991, the veteran had good clinical response to medication resulting in limited symptoms, except for an acute flare-up in 1997 that was associated with more intense right lower quadrant discomfort, bloody diarrhea, and fever. Physical examination revealed active bowel sounds, no abdominal tenderness or rebound, and no organomegaly or masses. The examiner provided a diagnosis of Crohn's disease, currently in remission, treated with asulfadine therapy. The veteran submitted medical records from Dr. P.C., dated October 1996 through October 2004. These records reflect treatment for Crohn's disease and indicate symptoms including, low abdominal pain and cramping, diarrhea, mild nausea, occasional stomach pain, and occasional blood in the stool. Progress notes dated February 2001, April 2004, and June 2004 showed that the veteran had a good appetite, and generally stable weight. A February 2001 CT scan of the abdomen indicated very minimal mesenteric lymph nodes consistent with a history of Crohn's disease, but no evidence of active disease, and no evidence of bowel obstruction or free air. Ultrasounds of the abdomen performed in February 2001 and September 2003 were unremarkable. An x-ray of the abdomen performed in July 2004 revealed no free air, no evidence of obstruction, and no localizing abnormality. A July 2004 colonoscopy indicated a normal colon , mild inflammation of the ileocecal valve, and some diverticulosis. Biopsies taken in conjunction with the colonoscopy revealed chronic enteritis with moderate activity. A CT of the abdomen performed in September 2004 revealed a stable abdomen and pelvis with a small amount of free pelvic fluid and a 1.5 cm nodule just anterior and medial to the spleen that remained unchanged and likely represented a splenule. A medical opinion by Dr. P.C., dated December 2004 indicated that the veteran's Crohn's disease primarily involved the small intestine and manifested itself through diarrhea, abdominal pain, lack of energy, and a generalized feeling of malaise. The physician indicated that medications, Asacol, Bentyl, and occasionally Prednisone, were prescribed to control the veteran's condition. The veteran's Crohn's Disease has been rated as 30 percent disabling under the provisions of 38 C.F.R. § 4.114, Diagnostic Code 7323 (ulcerative colitis). A 10 percent disability rating is awarded for moderate impairment, with infrequent exacerbations. A 30 percent disability rating contemplates moderately severe impairment, with frequent exacerbations. A 60 percent disability rating contemplates severe impairment, with numerous attacks yearly and with malnutrition, with health only fair during remissions. A 100 percent rating is warranted for pronounced impairment, resulting in marked malnutrition, anemia, and general debility, or with serious complications such as liver abscess. 38 C.F.R. § 4.114, Diagnostic Code 7323. The veteran's service-connected Crohn's disease could be rated analogous to 38 C.F.R. § 4.114, Diagnostic Code 7315 (cholelithiasis) or Diagnostic Code 7319 (irritable colon syndrome). However, a 30 percent disability rating, the veteran's current disability rating, is the maximum disability rating permitted under these Diagnostic Codes. While the veteran clearly continues to suffer from Crohn's disease, the symptomatology shown by the evidence does not establish that the disorder warrants a rating in excess of the 30 percent. Although the evidence consistently shows that the veteran experiences symptoms such as diarrhea, nausea, abdominal pain, lack of energy, and a generalized feeling of malaise, the medical evidence of record fails to show that the veteran's Crohn's disease is severe and manifested by numerous yearly attacks with definite weight loss, malnutrition, and only fair health during remissions. Examination and treatment records, as well as various x-rays, ultrasounds, colonoscopies, and CT scans, from March 1991, the date of the veteran's diagnosis of Crohn's disease, to the present have consistently shown the veteran's weight to be stable, no malnutrition, and no anemia. Although the veteran has lost some weight over the course of several years, examiners has reported that her weight is stable. Additionally, there is no evidence that the veteran suffers from any malnutrition or that her health is only fair during periods of remissions. In fact, on March 2003 VA examination, the veteran's Crohn's disease was found to be in remission. Given the foregoing, the Board concludes that the overall disability picture more closely approximates the criteria for a 30 percent rating under 38 C.F.R. §§ 4.7, 4.114, Diagnostic Code 7323. The Board notes that this is an initial ratings case, and consideration has been given to "staged ratings" since service connection was made effective (i.e., different percentage ratings of different periods of time). Fenderson v. West, 12 Vet. App. 119 (1999). However, there appears to be no identifiable period of time since the effective date of service connection during which the service-connected Crohn's disease was more than 30 percent disabling. Thus "staged ratings" are inapplicable to this case. As there is not an approximate balance of positive and negative evidence regarding the merits of the appellant's claim for an initial rating in excess of 30 percent for Crohn's disease that would give rise to a reasonable doubt in favor of the appellant, the benefit of the doubt rule is not applicable. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to a rating in excess of 30 percent for Crohn's disease is denied. ____________________________________________ K. Osborne Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs