Citation Nr: 1232767 Decision Date: 09/24/12 Archive Date: 10/01/12 DOCKET NO. 08-23 240A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to an evaluation in excess of 30 percent for irritable colon syndrome. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The Veteran served in the Army Reserve, and had active duty from September 1971 to March 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a regional office (RO) rating decision of June 2006, which granted an increased rating to 30 percent for irritable colon syndrome. Although the Veteran has submitted evidence of medical disability, and made a claim for the highest rating possible, she has not submitted evidence of unemployability, or claimed to be unemployable due to service-connected irritable colon syndrome. Therefore, the question of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU rating) has not been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). FINDINGS OF FACT 1. Irritable colon syndrome is moderate, manifested by alternating constipation and diarrhea and occasional abdominal pain or cramping, with occasional mild fecal leakage during periods of diarrhea. 2. There are no distinct periods of time during the appeal period during which more severe manifestations have been shown. CONCLUSION OF LAW Throughout the appeal period, the criteria for a rating in excess of 30 percent rating for irritable bowel syndrome have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.114, Diagnostic Code 7319 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notification and Assistance Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In a letter dated in November 2005, prior to the adjudication of the increased rating claim, the RO advised the claimant of the information necessary to substantiate the claim, and of her and VA's respective obligations for obtaining specified different types of evidence. The Veteran was informed of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., treatment records, or statements of personal observations from other individuals. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). In May 2008, she was notified of the type of evidence needed to demonstrate a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Subsequent to this notification letter, the claim was readjudicated, most recently in a February 2012 supplemental statement of the case, thus curing the timing defect of this part of the notice. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). VA also has a duty to assist the Veteran by making all reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2011). The Veteran's service and VA treatment records have been obtained, as have other treatment records identified by the Veteran. VA examinations were provided in December 2005 and October 2011. The Veteran's representative stated, in an informal hearing presentation dated in September 2012, that the Veteran should be afforded a new VA examination because the October 2011 VA examination was inadequate. The representative said that the examination was inadequate because the examiner did not review the claims file; did not provide a rationale or conclusion as to whether the Veteran should be afforded an increased rating; and did not discuss new VA records that reportedly showed a worsening of her condition, pointing to post-colonoscopy records dated September 6, 2006. The colonoscopy, however, showed only nonbleeding angiodysplasia, which are small vascular abnormalities (Dorland's Illustrated Medical Dictionary, 83 (30th ed., 2003)), and hemorrhoids, which are not service connected. Moreover, the December 2006 follow-up report stated that the conditions found were asymptomatic. The Board finds that the December 2010 examination is adequate. First, it is not essential that the claims file be reviewed in a rating examination. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (medical opinion cannot be discounted solely because the opining physician did not review the claims folder). In this case in particular, the only medical records on file covering the appeal period are VA records, and the examiner stated that the computerized VA medical records had been reviewed. A history was obtained from the Veteran in the course of the examination. There is no allegation or indication that evidence in the claims file would have affected the observations of the examiner. See Mariano v. Principi, 17 Vet. App. 305, 311-12 (2003) (when reviewing the claims file would not affect the observations of an examiner, the failure to review it does not prejudice the claimant). Additionally, it is not the function of the examiner to state whether a Veteran should be afforded an increased rating; this is the function of the adjudicators. The examiner reported the symptoms and findings, but appropriately left it to the adjudicators to determine the rating to be assigned. As noted, the September 2006 colonoscopy report showed only nonbleeding angiodysplasia and hemorrhoids, which are not service connected. Moreover, the December 2006 follow-up report stated that the conditions found were asymptomatic. The examiner reviewed the medical records, and is not required to discuss every piece of evidence; there is no indication that the colonoscopy report, which was of record, needed to be discussed separately by the examiner. In sum, the examiner reviewed the medical records, obtained the Veteran's medical history from the Veteran, and also described the disability in sufficient detail for the Board to make an informed decision. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). There is no evidence indicating that there has been a material change in the service-connected disorders addressed on the merits since this last evaluation. 38 C.F.R. § 3.327(a). Thus, the Board finds that all necessary notification and development has been accomplished, and therefore appellate review may proceed. Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the appellant 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). II. Analysis Disability evaluations are determined by the application of a schedule of ratings which 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. Although the disability must be considered in the context of the whole recorded history, including service medical records, the present level of disability is of primary concern in determining the current rating to be assigned. See 38 C.F.R. § 4.2 (2011); Francisco v. Brown, 7 Vet. App. 55 (1994); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). If the disability has undergone varying and distinct levels of severity throughout this time period, staged ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). Service connection was granted for irritable colon syndrome in a June 1976 rating decision, based upon records from a private physician which showed her treatment from February to April 1972 for complaints including alternating constipation and diarrhea, which the doctor felt was a functional bowel disease. In a medical certificate dated in December 1975, the doctor reported she had been diagnosed as having irritable colon syndrome. Accordingly, she was granted service connection for irritable colon syndrome, and assigned a 10 percent rating under diagnostic code 7319, which explicitly pertains to irritable colon syndrome. In September 2005, the Veteran filed a claim for an increased rating, stating that the colon condition continued to worsen and cause additional distress. A VA examination was provided in December 2005. Although the claims file was not available, the electronic medical record was reviewed. She reported a history of two prior hospitalizations for abdominal cramping, alternating constipation and diarrhea, and excessive gas. She said she had undergone two flexible sigmoidoscopies and a barium enema which she said confirmed the diagnosis. She now complained of fecal leakage. She also said that although symptoms were initially only triggered by certain foods, now almost anything could trigger her symptoms. She had not had a colonoscopy. She denied rectal bleeding, weight loss, anorexia, fever or chills. On examination she did not have abdominal pain, but said she developed abdominal pain once a day which could last up to an hour. She felt the symptoms had worsened over the past 10 years. On examination, the abdomen was soft with normal bowel sounds. There was mild tenderness in all quadrants, with no rebound or guarding and no mass present. She was diagnosed as having irritable bowel syndrome, with residual symptoms as described in the report. VA treatment records dated from April to December 2006 show that on evaluation in April 2006, the Veteran reported a pattern of daily alternating constipation and diarrhea. In a review of symptoms, however, she reported no diarrhea, regular bowel movements, and no hematochezia. The abdomen was soft and nontender, with normal bowel sounds. On a gastroenterology consult in May 2006, she reported alternating constipation and diarrhea, with occasional cramps. She denied blood in the stool, weight loss, or change in bowel habit. She underwent a colonoscopy in September 2006, which disclosed nonbleeding angiodysplasia in the cecum, and external hemorrhoids. When seen for follow-up in December 2006, she reported alternating constipation and diarrhea and intermittent abdominal cramping, with no weight loss. She was diagnosed as having irritable bowel syndrome, nonbleeding vascular ectasia and hemorrhoids, asymptomatic. VA records dated from May 2007 to May 2008 show that in a gynecological examination in July 2007, the Veteran said that she had history of irritable bowel syndrome, with alternating constipation and diarrhea. She also reported lower abdominal pain which she attributed to irritable bowel syndrome. On a work-up for urinary incontinence in August 2007, the Veteran had some decrease in sphincter tone, but could contract, and the impression was rare fecal incontinence. In August 2007, she was seen in the gastrointestinal clinic for evaluation of her history of irritable bowel syndrome. She had a history of alternating constipation and diarrhea since the 1970's and needed a refill of the medication Bentyl, which relieved her symptoms a little. She said that when she felt for anxious, she had increased loose bowel movements. The abdomen was normal on examination. The assessment was that she had a history of irritable bowel syndrome, and she was advised to increase her fiber intake, and follow-up in the gastrointestinal clinic when needed. In August 2008, the Veteran's representative stated that the Veteran was in extreme discomfort every day, having to wear pads and diapers to keep the accidents she was having from showing on her clothes or elsewhere. On a VA examination in October 2011, the examiner reported that the claims file was not available, but the electronic medical record was reviewed. The Veteran gave a history of alternating constipation and diarrhea. She had diarrhea 2 to 3 times a week, each episode manifested by about 3 to 5 bowel movements, which were watery and sometimes loose, followed by constipation. She complained of abdominal cramps. Certain foods such as grapes and fried foods irritated the colon. She said that whenever she was anxious and stressed her diarrhea increased. She had no history of weight loss. She denied rectal bleeding. She had had no work-up recently. She did sometimes have leakage when she had diarrhea, so wore some pads to prevent leakage. On examination, her abdomen was soft and non-tender, with increased bowel sounds. Laboratory blood studies were normal. The rating schedule provides for irritable colon syndrome to be rated under diagnostic code 7319. A noncompensable rating is assigned for mild irritable colon syndrome with disturbances of bowel function with occasional episodes of abdominal distress. A 10 percent evaluation is assigned if there is moderate irritable colon syndrome with frequent episodes of bowel disturbance with abdominal distress. A 30 percent evaluation is assigned if there is severe irritable colon syndrome with diarrhea, or alternating diarrhea and constipation and more or less constant abdominal distress. 38 C.F.R. § 4.114, Code 7319. The Veteran is currently in receipt of the maximum rating provided under that diagnostic code. As can be seen in the above summary of the evidence, the Veteran's symptoms are alternating constipation and diarrhea, occasional abdominal pain and cramping, and some fecal leakage. On the VA examination in October 2011, she had diarrhea 2 to 3 times a week, each episode manifested by about 3 to 5 bowel movements, which were watery and sometimes loose, followed by constipation. Although the Veteran's representative stated, in August 2008, that the Veteran was in extreme discomfort every day, having to wear pads and diapers to keep the accidents she was having from showing on her clothes or elsewhere, this is not reflected in remainder of the record. The records and examinations during the appeal period, including the Veteran's histories reported at those times, demonstrate that although she regularly has alternating constipation and diarrhea, abdominal pain or cramping is occasional. On a urology evaluation in July 2007, it was noted that fecal incontinence was rare; other medical records indicate that at worst, the fecal leakage is occasional. For these reasons, the Board finds the numerous medical histories findings reported by the Veteran, as well as examination findings, both before and after the August 2008 statement to be more probative than the representative's statement, which offers no explanation for the significant discrepancies. The evidence shows that the symptoms of alternating constipation and diarrhea and abdominal pain and cramping are moderate, but the Veteran is in receipt of a 30 percent rating, reflecting severe symptomatology. The RO, however, rated the Veteran as 30 percent disabling using a combined diagnostic code of 7333-7319. Under Diagnostic Code 7333, stricture of the rectum and anus is rated 30 percent disabling for moderate reduction of lumen or moderate constant leakage; 50 percent disabling when there is great reduction of lumen or extensive leakage; and 100 percent disabling when a colostomy is required. 38 C.F.R. § 4.114, Code 7333. The Veteran, however, does not have stricture of rectum or anus, and if such was present, a separate decision as to service connection would have to be made. Apparently, the RO used the diagnostic code to account for the fecal leakage present. A better diagnostic code, under the circumstances present in this case, would be Diagnostic Code 7332, which provides ratings based on impairment of sphincter control. Healed or slight impairment of sphincter control, without leakage, is rated as noncompensable. Constant slight impairment of sphincter control, or occasional moderate leakage, is rated 10 percent disabling. Occasional involuntary bowel movements, necessitating wearing of pad, are rated 30 percent disabling. Extensive leakage and fairly frequent involuntary bowel movements are rated 60 percent disabling. Complete loss of sphincter control is rated 100 percent disabling. 38 C.F.R. § 4.114 , Diagnostic Code 7332. The medical evidence shows slight impairment of sphincter control, and the Veteran reports rare to occasional leakage associated with diarrhea. Although she apparently wears a pad at least at times, this is because of leakage associated with diarrhea and not because of involuntary bowel movements. Thus, if considered separately, the Veteran would only be entitled to, at most, a 10 percent rating for moderate symptoms of irritable colon syndrome, and a 10 percent rating for occasional moderate fecal leakage. Although the overall disability assigned by the RO of 30 percent for all symptoms appears appropriate, a higher rating is not warranted. Moreover, because the Board finds that the symptoms of fecal leakage are required to merit the 30 percent evaluation currently in effect for irritable colon syndrome symptomatology, a separate evaluation is not warranted based on fecal leakage alone. For the reasons discussed above, the evidence as a whole establishes that the level of symptomatology resulting from the Veteran's service-connected irritable colon syndrome is encompassed by the 30 percent rating currently in effect. In reaching this determination, the Board is mindful that all reasonable doubt is to be resolved in the Veteran's favor. The preponderance of the evidence, however, is against the claim, and the claim must be denied. 38 U.S.C.A. § 5107(b) ; see Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran has not contended that her irritable colon syndrome causes any interference with employment, nor are frequent hospitalizations shown; according, the question of an extraschedular rating is not raised. See Barringer v. Peak, 22 Vet. App. 242 (2008). ORDER A rating in excess of 30 percent for irritable colon syndrome is denied. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs