Citation Nr: 0933235 Decision Date: 09/03/09 Archive Date: 09/14/09 DOCKET NO. 06-12 498 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to an initial evaluation in excess of 30 percent for irritable bowel syndrome (IBS) on an extraschedular basis. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The Veteran had active service from 1977 to 2003, a period of more than 26 years. This appeal initially came before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which granted service connection for IBS and assigned an initial evaluation for that disability. The Board Remanded the issue on appeal in September 2007. During the pendancy of this appeal, jurisdiction of the Veteran's claims files was transferred, and his appeal now comes to the Board from the Reno, Nevada. By a rating decision prepared in January 2009 and issued in February 2009, the Veteran was awarded service connection for a ganglion cyst, left wrist, and that disability was evaluated as 10 percent disabling. The record does not reflect that the Veteran has disagreed with any aspect of the 2009 rating decision, and no issue regarding a ganglion cyst, left wrist, is before the Board for appellate review. The Veteran requested a Travel Board hearing. The requested hearing was conducted by the undersigned Veterans Law Judge in May 2007. FINDING OF FACT The Veteran's IBS is productive daily diarrhea, but not more or less constant abdominal distress, weight loss, malnutrition, anemia, general debility, impairment of health, hospitalization, marked interference with employment, or any other symptom which creates an unusual disability picture. CONCLUSION OF LAW The criteria for entitlement to an initial evaluation in excess of 30 percent for irritable bowel syndrome, including on an extraschedular basis, have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002 & Supp. 2002); 38 C.F.R. §§ 3.102, 3.159, 4.114, Diagnostic Codes 7319, 7307, 7323, 7328 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that his IBS is so disabling as to present an unusual disability picture warranting an evaluation in excess of the maximum schedular evaluation. The Board must address whether VA has met its statutory duties to provide the Veteran with notice and assistance before addressing the legal and factual issues raised on appeal. VA's duties to the claimant The Veterans Claims Assistance Act of 2000 (VCAA) specifies VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2008). Here, the Veteran is challenging an initial evaluation assigned following the grant of service connection for IBS. In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court of Appeals for Veterans Claims held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Thus, because the notice that was provided before these claims for service connection were granted was legally sufficient, VA's duty to notify in this case has been satisfied. For the reasons set forth above, and given the facts of this case, the Board finds that VA has fulfilled its VCAA notification duties to the Veteran to the extent necessary. Duty to assist Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, the Veteran has been provided with VA examinations of the gastrointestinal system. The Veteran has identified relevant private clinical records, and those records have been obtained. The Veteran has not indicated that there are any other available records or alternative records which might be relevant to the claim addressed in this decision. The Veteran has provided statements and testimony on his own behalf. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Appellate review may proceed. Law and regulations, claim for increased initial evaluation Disability evaluations are determined by the application of VA's 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. In Fenderson v. West, 12 Vet. App. 119 (1999), the Court held that evidence to be considered in the appeal of an initial assignment of a rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the "staging" of ratings, finding that in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a Veteran to be awarded separate evaluations for separate periods based on the facts found during the appeal period. Fenderson at 126-28. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Law and regulations governing evaluation of IBS IBS is evaluated under 38 C.F.R. § 4.114, Diagnostic Code (DC) 7319. DC 7319, as in effect throughout the pendency of this appeal, beginning when the Veteran submitted his May 2003 claim for service connection for IBS, provides a 10 percent rating where the evidence reveals moderate irritable colon syndrome, with frequent episodes of bowel disturbance with abdominal distress. A 30 percent rating is warranted when the evidence demonstrates severe irritable colon syndrome with diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. A 30 percent evaluation is the maximum schedular evaluation provided under DC 7319. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the Chief Benefits Director or the Director, Compensation and Pension Service, may consider assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. Facts and analysis On VA examination conducted in August 2003, the Veteran reported daily rectal urgency, with discomfort and cramping and the need to defecate within about 15 minutes, with recurrences every two to three hours. The Veteran reported use of Imodium to help control his symptoms. In his November 2003 notice of disagreement, the Veteran reported that he had 8 to 14 bowel movements daily. He refrained from participating in many activities because he constantly had to be near restroom facilities. The Veteran's regimen, which included use of Imodium to decrease frequency of rectal urgency, remained unchanged after November 2004 private treatment. March 2005 private treatment notes reflect that the Veteran required Imodium one to three times per day. There was mild diffuse abdominal tenderness. In June 2006, the Veteran reported pain in the right groin after strain with a bowel movement. There was abdominal tenderness at a muscular ridge over the lower abdomen. Imodium was prescribed at the time of each treatment episode. In his March 2006 substantive appeal, the Veteran contended that the impact of IBS on his quality of life was more severe than a 30 percent evaluation reflected. On VA examination conducted in May 2006, the Veteran's abdomen was not distended or tender. There was no pain on palpation. Bowel sounds were quiescent. The Veteran reported no weight gain or loss. He reported incontinence once or twice a year. He reported that he used bowel cleansing each morning prior to work to manage the symptoms at work. The examiner described the Veteran's symptoms as "significant," and noted that the Veteran was able to maintain his employability, with significant effort. May 2006 VA examination revealed no weight gain or loss. The examiner stated that there was no malnutrition, anemia, or debility, but the Veteran reported periodic abdominal pain and cramping each morning. No abdominal pain was evidenced on objective examination. At his May 2007 Travel Board hearing, the Veteran testified that he experienced daily diarrhea, triggered as soon as he ate in the morning. He testified that he had diarrhea usually 4 to 5 times each morning before he could finish his breakfast. This delayed his arrival at work, so he required a flexible morning arrival schedule. He testified that he had experienced "major" incontinence several times per year. The Veteran submitted statement from two supervisors, who both indicated that the Veteran was a valued employee, but that his hours of arrival and departure were unpredictable, especially in the mornings, due to his health problems. Both stated that the Veteran sometimes had to leave his desk, leave a meeting, or leave work because of IBS symptoms. Both supervisors indicated that the Veteran would put in time on his projects at home or stay late to keep up. The employer statements indicated that the Veteran had been employed since February 2006, and used 60 to 80 hours of sick leave per year and about 40 hours of compensatory time due to IBS symptoms. February 2007 private treatment notes reflect that the Veteran was treated for abdominal pain in follow-up to an emergency room visit. His abdomen was not tender or distended. No other notations of treatment for IBS or abdominal pain appear in the private treatment notes dated through January 2009. Findings at an August 2008 VA examination were consistent with those at the prior VA examinations. He reported profuse morning diarrhea, usually 5 to 7 times each morning, resulting in tardiness to work two or more times per week. He reported that he required a bathroom available within minutes, reducing his quality of life. As noted above, a 30 percent evaluation is the maximum schedular evaluation available under DC 7319. When the maximum schedular evaluation under the applicable Diagnostic Code has been assigned, as in this case, the Board must consider whether a higher evaluation in warranted under an alternative Diagnostic Code that may be applicable. In this case, the Board has considered whether an evaluation in excess of 30 percent may be granted under Diagnostic Codes used to evaluate gastritis (DC 7307), ulcerative colitis (7323), or resection of the small intestine (7328). Each of these Diagnostic Codes allows a 60 percent or higher evaluation. However, examinations establish that the Veteran does not have a bleeding ulcer, hemorrhage, large ulcerated or eroded areas, or other finding consistent with a 60 percent evaluation under these diagnostic codes. The criteria for a 60 percent evaluation for ulcerative colitis require a finding of malnutrition, with health only fair during remission, and numerous attacks. While daily diarrhea reported by the Veteran meets the criterion for "numerous attacks," the providers have consistently stated that the Veteran is not malnourished. Thus, he does not meet the criteria for a 60 percent evaluation under DC 7323. Finally, the Board has considered evaluation of the Veteran's IBS by analogy to resection of the small intestine, DC 7328. A 40 percent evaluation under DC 7328 is warranted for definite interference with absorption and nutrition, manifested by impairment of health objectively supported by examination findings including definite weight loss. A 60 percent rating is warranted for marked interference with absorption and nutrition, manifested by severe impairment of health objectively supported by examination findings including material weight loss. As the Veteran has not experience weight gain or loss at any time during the six years of the pendency of this appeal, an evaluation in excess of 30 percent is not warranted under DC 7328 during any portion of the appeal. The Board has considered whether any other DC might be applicable to warrant an increased schedular evaluation. The Board is unable to find any other applicable DC that might warrant an evaluation in excess of 30 percent. The Veteran does not manifest partial obstruction of the intestinal tract, rectal prolapse or stricture, fecal leakage or fairly frequent involuntary bowel movements, hernia, or other symptoms which would warrant application of any DC that provides an evaluation in excess of 30 percent. The evidence as a whole establishes that the Veteran's gastrointestinal distress does not impair his industrial capability beyond a level consistent with the assigned schedular evaluation. The estimate of hours lost from work provided by the Veteran's employer is less than 30 percent of a full-time work schedule, and is, in fact, less than 10 percent of a full-time work schedule (100 to 120 hours per year out of a 2000 hour work year). This level of interference can not appear to be marked in nature. The Veteran has not required hospitalization for his gastrointestinal problems. In fact, it does not appear that he sought VA or private outpatient treatment of his gastrointestinal problems in the past year, other than to get refills of the prescription for Imodium. Therefore, the Board agrees with the RO determination, as specified in the July 2009 supplemental statement of the case, that the Veteran's gastrointestinal disability does not present an unusual or exception disability picture which warrants referral to the Chief Benefits Director or the Director, Compensation and Pension Service, to address whether the Veteran is entitled to an increased evaluation on an extraschedular basis. See 38 C.F.R. § 3.321(b)(1); Floyd v. Brown, 9 Vet. App. 88, 95 (1996). As the evidence is not in equipoise, the statutory provisions regarding resolution of reasonable doubt are not applicable to warrant a more favorable outcome. 38 U.S.C.A. § 5107(b). The appeal for an initial evaluation in excess of 30 percent for IBS, to include on an extraschedular basis, is denied. See Thun v. Peake, 22 Vet. App. 111 (2008) (describing the three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating; first, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate; then, second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, Board must determine whether the claimant's disability picture exhibits related factors such as those provided by the regulation as "governing norms"; third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture shows related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the disability picture requires the assignment of an extraschedular rating). The Veteran asserts that the 30 percent evaluation does not take into effect the diminished quality of life due to the Veteran's need to always be within minutes from a restroom facility. The Veteran's objective decrease in industrial capability is essentially encompassed within a 10 percent evaluation, but a 30 percent evaluation has been assigned in this case. The Board does not disagree with the assigned 30 percent evaluation, but finds that the initial 30 percent evaluation encompasses the Veteran's decreased "quality of life," even though that criteria is not specified as one of the factors encompassed within a 30 percent evaluation. The evidence preponderates against a finding that there is an exceptional or unusual clinical picture so as to warrant a finding that schedular criteria are inadequate or warrant referral for an extraschedular consideration. The claim for an initial evaluation in excess of 30 percent for IBS on an extraschedular basis is denied. ORDER The appeal for initial evaluation in excess of 30 percent for IBS on an extraschedular basis is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs