Citation Nr: 0809879	
Decision Date: 03/25/08    Archive Date: 04/09/08

DOCKET NO.  03-18 225	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los 
Angeles, California



THE ISSUE

Entitlement to a rating in excess of 10 percent for irritable 
bowel syndrome (IBS).



REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of 
the United States



ATTORNEY FOR THE BOARD

A. Ishizawar, Associate Counsel



INTRODUCTION

The appellant is a veteran who served on active duty from 
January 1998 to January 2002.  This matter is before the 
Board of Veterans' Appeals (Board) on appeal from a January 
2002 rating decision of the Waco, Texas Department of 
Veterans Affairs (VA) Regional Office (RO).  In her June 2003 
VA Form 9 (substantive appeal) the veteran requested a Travel 
Board hearing.  She withdrew the request in July 2003.  In 
December 2004 the case was remanded for additional 
development.  The veteran's claims file is now in the 
jurisdiction of the Los Angeles, California RO.  

The veteran also initiated appeals of denials of service 
connection for a bilateral toe disorder, to include Raynaud's 
syndrome, and of the ratings assigned for left patellofemoral 
pain syndrome and for residuals of left ankle strain.  In a 
June 2002 letter, she withdrew the appeals in the matters of 
the ratings for left patellofemoral pain syndrome and 
residuals of left ankle strain.  A September 2003 rating 
decision granted service connection for onychomycosis, 
bilateral great toenails (previously claimed as bilateral toe 
disorder, to include Raynaud's syndrome), rated 
noncompensable, effective January 6, 2002.  Consequently, 
those matters are not before the Board.

January 2003 correspondence from the veteran appears to raise 
a dental claim.  In December 2004, the Board referred this 
matter to the RO for appropriate action.  The record does not 
reflect that any action has been taken; therefore, the matter 
is again referred to the RO for any appropriate action.


FINDING OF FACT

The veteran's IBS is manifested by moderate to severe 
constipation, bloating, gas, and moderate to severe abdominal 
pains, with past problems of diarrhea; these symptoms 
reasonably reflect a disability picture consistent with 
severe irritable colon syndrome.  

CONCLUSION OF LAW

A 30 percent rating is warranted for the veteran's IBS.  
38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 
4.1, 4.3, 4.7, 4.21, 4.114, Diagnostic Code (Code) 7319 
(2007).


REASONS AND BASES FOR FINDING AND CONCLUSION

A.	Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, in part, describes VA's duties to notify and assist 
claimants in substantiating a claim for VA benefits.  See 
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 
38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  The VCAA 
applies to the instant claim.  

Inasmuch as this decision grants the maximum schedular rating 
for IBS, there is no reason to belabor the impact of the VCAA 
on the matter; any error in notice timing or content is 
harmless.  Accordingly, the Board will address the merits of 
the claim.

B.	Factual Background

The veteran's service medical records (SMRs), including her 
July 2001 separation physical examination report, reveal that 
IBS was diagnosed and treated in service.  On October 2001 
(prior to separation from service) VA examination, she 
reported experiencing IBS symptoms approximately twice a 
month, lasting a week and treated with Zantac.  On physical 
examination, her abdomen was soft and nontender with no 
masses, and normal abdominal bowel sounds.  IBS was 
diagnosed.

VA outpatient treatment records reflect that in May 2002, the 
veteran was referred to the gastrointestinal clinic for 
intermittent diarrhea and constipation, which had been 
diagnosed as IBS in service, and had continued since.  She 
complained of hematochezia, diarrhea, constipation, changes 
in bowel habits, hemorrhoids, gas, and abdominal pain.  From 
January to June 2006, the veteran was treated for complaints 
of chronic constipation and rectal pain from hemorrhoids with 
intermittent bright red blood per rectum.  Constipation from 
possible pelvic floor dyssynergia versus IBS was diagnosed.

On May 2007 VA examination, the veteran reported constant 
symptoms of moderate to severe abdominal pain, bloating, gas, 
and moderate to severe constipation.  Her treatment regimen 
included stool softeners, laxatives, and milk of magnesia, 
with an increased fiber intake and avoidance of dairy 
products.  Upon physical examination, tenderness in the 
abdomen and lower quadrants was noted along with hyperactive 
bowel sounds.  X-ray findings demonstrated unremarkable bowel 
gas patterns.  It was the examiner's opinion that based upon 
the veteran's reported constant symptoms of moderate to 
severe abdominal pain, bloating, gas, and moderate to severe 
constipation, "her condition is moderately severe."

C.	Legal Criteria and Analysis

Disability evaluations are determined by the application of a 
schedule of ratings, which is based on the average impairment 
of earnings capacity caused by a given disability.  
38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  It is not expected that 
all cases will show all the findings specified; however, 
findings sufficiently characteristic to identify the disease 
and the disability therefrom and coordination of rating with 
impairment of function will be expected in all instances.  
38 C.F.R. § 4.21.  

Where there is a question as to which of two evaluations 
shall be applied, the higher rating will be assigned if the 
disability picture more nearly approximates the criteria for 
that rating.  Otherwise, the lower rating will be assigned.  
38 C.F.R. § 4.7.  After careful consideration of the 
evidence, any reasonable doubt remaining is resolved in favor 
of the veteran.  38 C.F.R. § 4.3.

Where (as here) the rating appealed is the initial rating 
assigned with a grant of service connection, the entire 
appeal period is for consideration, and separate ratings may 
be assigned for separate periods of time based on facts 
found, a practice known as "staged ratings."  See Fenderson 
v. West, 12 Vet. App. 119 (1999).

The veteran's IBS is currently rated 10 percent under 
38 C.F.R. § 4.114, Code 7319 based on moderate irritable 
colon syndrome with frequent episodes of bowel disturbance 
with abdominal distress.  To warrant the next higher rating 
(30 percent), which is also the maximum rating, the evidence 
must show severe irritable colon syndrome with diarrhea, or 
alternating diarrhea and constipation, with more or less 
constant abdominal distress.

It is not expected that all cases will show all the findings 
specified; however, findings sufficiently characterized to 
identify the disease and the disability therefrom and 
coordination of rating with impairment of function will be 
expected in all instances.  38 C.F.R. § 4.21.  

The Board finds that the higher evaluation is warranted under 
Code 7319, as it affords a better approximation of the 
findings as reported by the veteran and the medical evidence.  
May 2002 VA outpatient treatment records document that the 
veteran experienced ongoing constipation and diarrhea with 
abdominal pain.  On May 2007 VA examination, she complained 
of moderate to severe constipation and abdominal pain that 
were both constant in nature.  The Board finds the veteran's 
statements describing her symptoms and limitations to be 
competent lay evidence.  See 38 C.F.R. § 3.159(a)(2); 
Caldwell v. Derwinski, 1 Vet. App. 466 (1991) (lay witnesses 
can testify as to the visible symptoms or manifestations of a 
disease or disability); Espiritu v. Derwinski, 2 Vet. App. 
492 (1992).  The examiner also opined that the veteran's IBS 
was "moderately severe."  The Board notes that she does not 
presently complain of diarrhea; however, given the severity 
of the her constipation and abdominal pain, and the chronic 
nature and symptomatology of the disability at issue, a 30 
percent evaluation more appropriately reflects the degree of 
functional impairment.  

For all the foregoing reasons, the Board finds that the 
initial rating of 30 percent represents the maximum rating 
assignable since the effective date of the grant of service 
connection for this disability.  As such, there is no basis 
for a staged rating of this disability, pursuant to 
Fenderson.

The benefit of the doubt is resolved in the veteran's favor.  
See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. 
Derwinski, 1 Vet. App. 49, 53-56 (1990).

The Board has also considered whether referral for 
extraschedular consideration is suggested by the record.  
Although the May 2007 VA examiner noted that the veteran's 
IBS has resulted in "increased absenteeism" with respect to 
her employment, there is no objective evidence or allegation 
in the record of "marked" interference with employment or 
frequent hospitalizations due to IBS which would suggest that 
referral for extraschedular consideration is indicated. 


ORDER

A 30 percent rating is granted for the veteran's IBS, subject 
to the regulations governing the payment of monetary awards.



______________________________________________
George R. Senyk
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs