Citation Nr: 1317844 Decision Date: 05/31/13 Archive Date: 06/06/13 DOCKET NO. 09-21 693 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to a rating in excess of 30 percent for irritable bowel syndrome (IBS), diagnosed as Crohn's disease, to include on an extraschedular basis. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD M. H. Stubbs, Counsel INTRODUCTION The Veteran served on active duty from December 2006 to March 2007. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. Jurisdiction of this case was subsequently returned to the RO in Roanoke, Virginia. The Court has held that a request for a total disability evaluation based on individual unemployability, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Veteran raised the issue of TDIU in a January 2009 statement. He stated that he was unable to work due to his service-connected IBS. Also, in a January 2010 VA examination report, the Veteran stated that he was unable to find a job compatible with his medical problems of Crohn's disease. In a February 2010 decision, the RO denied the Veteran's claim for a TDIU. The Veteran has not appealed this decision, nor has he raised the issue of TDIU again since that time. For these reasons, the Board finds that further consideration of a claim for TDIU is not warranted. This appeal was previously before the Board in September 2012. The Board granted an initial rating of 30 percent rating for the entire period on appeal, but remanded the claim so that additional applicable treatment records could be obtained. The claim for a rating in excess of 30 percent for IBS has been returned to the Board for further appellate consideration. FINDINGS OF FACT 1. The Veteran's IBS is manifested by alternating diarrhea and constipation, with more or less constant abdominal distress. The symptoms are not severe, with numerous attacks a year, the Veteran's health only fair during remissions or pronounced with marked malnutrition, anemia and general debility. He does not have liver abscess. 2. The evidence of record does not reflect that justice requires assignment of a disability rating in excess of 30 percent for service-connected IBS disease on an extraschedular basis. CONCLUSION OF LAW The criteria for an increased rating of 30 percent for the service-connected IBS, diagnosed as Crohn's disease, have not been met. 38 U.S.C.A. §§ 1155 , 5107, 7104 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.7, 4.114 including Diagnostic Codes 7319, 7323 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In a July 2008 letter, the RO notified the Veteran of the evidence needed to substantiate the claim for an increased rating for IBS/Crohn's disease. The letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist in obtaining and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). For claims pending before VA on or after May 30, 2008, 38 C.F.R. 3.159 was amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). The Veteran was notified of all other elements of the Dingess notice, including the disability rating and effective date elements of his claim, in the July 2008 letter. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA obtained the Veteran's service treatment records (STRs) and all of the identified post-service treatment records. The Veteran indicated he received treatment in August 2012 at the Salem VA medical center (MC). The Salem VAMC indicated that a record for treatment from August 2012 does not exist. In September 2012, the RO provided a formal finding of unavailability for the treatment record. The Veteran was also provided with August 2008 and May 2012 VA-authorized examinations. The examinations were adequate for rating purposes. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claim for an increased rating for IBS/Crohn's disease is thus ready to be considered on the merits. Laws and Regulations Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In a September 2012 decision, the Board provided a 30 percent rating for IBS, diagnosed as Crohn's disease, for the rating period on appeal through May 8, 2012. The Board noted that treatment records were not available, and thus remanded the issue of entitlement to an evaluation in excess of 30 percent. In a September 2012 rating decision, the RO implemented the 30 percent rating for IBS, diagnosed as Crohn's disease, from an earlier effective date of March 15, 2007. The Veteran's current 30 percent rating is assigned under the criteria of 38 C.F.R. § 4.114, Diagnostic Code (DC) 7319. Diagnostic Code 7319 for irritable colon syndrome provides a noncompensable rating for mild irritable colon syndrome with disturbances of bowel function with occasional episodes of abdominal distress. A 10 percent rating is assigned for moderate symptoms, with frequent episodes of bowel disturbance with abdominal distress. A 30 percent rating is warranted for severe symptoms, with diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. The Board has also considered other potentially applicable Diagnostic Codes. Diagnostic Code 7325 is applicable to chronic enteritis and is to be rated under the criteria for irritable colon syndrome. Diagnostic Code 7323 is applicable to ulcerative colitis. Under Diagnostic Code 7323, a 30 percent rating is warranted for moderately severe impairment, with frequent exacerbations. A 60 percent disability rating is warranted for 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. Factual Background and Analysis The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Initially, in the September 2012 remand, the Board noted that the May 2012 examiner had addressed several records that were not included in the claims file, and directed the RO/Appeals Management Center (AMC) to obtain any outstanding records. The Board incorrectly directed the AMC to obtain an August 2012 gastrointestinal consultation note, instead of the August 2011 note that was cited by the May 2012 examiner. The AMC contacted the Salem VAMC to obtain any August 2012 treatment records, and was informed that no records existed for that time period. The Board notes that the August 2011 gastrointestinal note that was referenced in the May 2012 VA examination report is contained in Virtual VA. By way of history, service treatment records show that the Veteran developed a sacral/gluteal abscess in December 2006. The abscess was excided and treated. Subsequently, he developed persistent diarrhea. Physicians suspected clostridium difficile, a bacterium, secondary to treatment with antibiotics; however, February 2007 testing was negative. Instead, pathology findings were nonspecific, with differentials including inflammatory bowel disease, allergic proctocolitis, drug-induced colitis, and parasites. The Veteran then underwent a flexible sigmoidoscopy and colonoscopy, which was concerning for Crohn's disease. A February 2007 CT scan was provided to evaluate for evidence of Crohn's disease. The CT scan did not reveal radiographic evidence of Crohn's disease. He had a left renal simple cyst and a small to moderate amount of free fluid in the pelvis of undetermined significance. A March 2007 physician interpreted the Veteran's fecal pathology and colonoscopy results as "concerning for IBS, most likely Crohn's" disease. The Veteran reported doing well after discharge, and that his diarrhea had resolved since taking Asacol. The physician noted that diarrhea resolving with Asacol was consistent with inflammatory bowel disease. He was subsequently assessed with chronic colitis, and the physician noted that the evidence suggested chronicity consistent with Crohn's disease, but that eosinophilic colitis and infectious colitis could not be completely excluded. Continued treatment with Asacol for one year with a follow-up colonoscopy was suggested. On March 12, 2007, the Veteran denied abdominal pain and bloody diarrhea. His diagnosis of Crohn's disease was noted to be medically disqualifying for service. A May 2007 private physician appeared to review the Veteran's service records, including his February 2007 colonoscopy, which revealed "terminal ileum with granular and friable mucosa and erosions, the cecum with granular and friable mucosa, hepatic flexure with areas of friability, granularity, edema and erosions." Treatment with Asacol was noted to show improvement, but the Veteran's symptoms did not completely resolve. He reported four stools a day with occasional abdominal cramps. The private physician found that the Veteran's in-service testing results were most consistent with Crohn's disease, "even with serologies suggesting it may be ulcerative colitis. It may be a mixed picture." At the time of the private physician's treatment, the Veteran had not been on medication for a month. The Board notes that the February 2007 colonoscopy results are not a part of the Veteran's service treatment records; however, the results of the colonoscopy, which suggested Crohn's disease, have been repeated in VA and private treatment records. As physician interpretations and findings based upon the colonoscopy are provided, the necessary evidence to proceed with an Board decision is available in the claims file. The February 2007 colonoscopy record was not requested in the Board's September 2012 remand. In August 2008, the Veteran was afforded a VA examination. He reported gaining 20 pounds in the previous year. He reported diarrhea two or three times per day. He had no constipation or distress. He sometimes had cramps in his abdomen. He reported pain in his abdomen all the time. The examiner diagnosed the Veteran with Crohn's disease, noting that it was a known and established diagnosis. In May 2009, the Veteran reported he was previously diagnosed with Crohn's disease. In 2007, he reported his symptoms were nausea, vomiting, abdominal pain, diarrhea, weight loss and he was "profoundly anemic." He currently denied nausea and vomiting, he endorsed mild abdominal pain ("on and off"), and three to four formed bowel movements without blood a day. His weight was stable, and he was not on any medications for Crohn's disease. He reported he could not tolerate Asacol or Enterocort in the past. The VA gastroenterologist noted that his "disease activity seems to be minimal now that does not justify steroids, immunodulators or biologics." Pentasa, an anti-inflammatory, was prescribed, for use as tolerated and as needed. In June 2009, the Veteran reported in his VA Form 9 that he has diarrhea four times a day. He also reported pain in his abdomen. He occasionally found blood in his stools. He also noted that he was not on any medication. In January 2010, the Veteran reported that medication prescribed in the past made his symptoms worse. He reported lower abdominal pain, with frequent constipation, and occasional diarrhea in between. He reported Pentasa gave him more diarrhea. He reported occasional cramps, two to three times a week. He was not losing any weight, and he denied a history of nausea, vomiting or upper abdominal pain. Laboratory results from 2009 showed a normal complete blood count. The physician diagnosed the Veteran with low activity of Crohn's disease. In February 2010, the Veteran underwent a biphasic upper gastrointestinal series. The impression was "no convincing evidence of Crohn's disease. Mild to moderate spontaneous gastroesophageal reflux without esophagitis. The rest of the study was within normal limits. An ultrasound of the gall bladder and liver were negative. A flat plate abdomen image was "unremarkable." March 2010 treatment records include a pre-colonoscopy nursing assessment where the Veteran reported occasional constipation and occasional diarrhea. He denied nausea and vomiting. The complete colonoscopy is not of record, however, the results of the March 2010 colonoscopy are reported in a May 2010 treatment record by the physician who provided the colonoscopy. The May 2010 treatment record noted the colonoscopy was "normal, including a look at the terminal ileum." The Veteran reported he did not have diarrhea, but that he was "constipated at times." He also reported some lower abdominal pains and frequent bowel movements, at times. He had no weight loss. The physician noted that he was "not sure the [Veteran] has Crohn's disease, but there has been documentation of Crohn's before, so if he does have it, it is probably under control at this time." The Veteran reported he did not wish to be on medication. He had elevated liver enzymes and some concern for fatty liver disease. Virtual VA contains blood test results from July 2011. The Veteran's red blood cell count was normal, and his white blood cell count was slightly high. The Veteran reported diarrhea occurring half of the days of the month lasting three to four days each and awakening him at night. He also reported abdominal pain with constipation. He has had blood in his stool when constipated, and rectal pain. He was referred to gastroenterology. In August 2011, the VA physician who provided the Veteran's colonoscopy noted that the Veteran's symptoms of alternating diarrhea and constipation were consistent with IBS. He again noted that the 2010 colonoscopy did not show evidence of Crohn's disease. He was assessed with IBS, and instructed to avoid dairy and high fiber cereals. In May 2012, the Veteran was afforded another VA examination. The examiner diagnosed the Veteran with irritable bowel syndrome. The examiner noted that the Veteran had alternating diarrhea and constipation when experiencing "stress" which resolved with time without over-the-counter or prescription medication. The examiner found that the Veteran had frequent episodes of bowel disturbances with abdominal distress, with seven or more in the last 12 months. He did not have weight loss, malnutrition or other serious complications attributable to his intestinal condition. The examiner included the August 2011 VA treatment record in the examination report which noted that the Veteran's symptoms seemed to be in keeping with diagnosis of IBS. Initially, the Board again notes that the operation reports from the Veteran's 2007 and 2010 colonoscopies are not contained in the claims file or in Virtual VA. The Board finds that this does not impede the Board's ability to make a ratings determination because the claims file contains physician interpretations of the findings of the colonoscopies. In adjudicating a claim, the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Board acknowledges that the Veteran is competent to give evidence about what he experiences. See Layno v. Brown, 6 Vet. App. 465 (1994). Competency of evidence, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). See also Buchanan, supra (The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. If the Board concludes that the lay evidence presented by a veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the veteran's ability to prove his claim of entitlement to disability benefits based on that competent lay evidence.) Here, the Board finds the Veteran's statements regarding the frequency and severity of his symptoms to be credible. His symptoms, according to his accounts to treatment providers, were most severe in 2007, then decreased from 2008 to 2010, and increased again in 2011. The Veteran's IBS is currently rated 30 percent under Diagnostic Code 7319. A 30 percent rating is assigned for severe irritable colon syndrome, with diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. The 30 percent rating is the highest rating assignable under Diagnostic Code 7319. The evidence does not suggest the Veteran suffers from malnutrition, or that his health is only fair during remissions of symptoms. Treatment records show that the Veteran gained weight after discharge from service, and has maintained this weight. Treatment records, including statements regarding the history of his disease by the Veteran, note that his symptoms have improved since their onset in February 2007. In 2010, his symptoms were "minimal." However, the most recent records show that he continues to suffer from alternating diarrhea and constipation, with abdominal pain and occasional blood when wiping after hard stools. Frequently, the records have indicated that he has not found his symptoms severe enough to use over-the-counter or prescription medications. Although he reported he was found to be anemic during treatment in service in 2007, more recent laboratory results showed normal red blood cell counts and normal complete blood cell counts. Treatment records noted a fear of fatty liver, however, a liver disorder had not yet been diagnosed. Certainly, the Veteran has not been found to have a liver abscess, and he has not complained of a loss of strength. The Veteran's symptoms of IBS most nearly approximate the 30 percent criteria under Diagnostic Code 7319, for severe irritable colon syndrome with alternating diarrhea and constipation, with more or less constant abdominal distress. While the Veteran had improvement of symptoms from 2008 to 2010, to include treatment records which noted "minimal" disease activity, the 30 percent rating has been applied to the entire period on appeal. A higher rating under Diagnostic Code 7323 is not warranted, as the treatment records do not reveal malnutrition, overall fair to poor health during remissions, anemia, general debility, or any serious complications associated with his IBS. As noted above, there was an indication that he may have a fatty liver disease, but he has not yet been diagnosed with a liver disorder, nor did the physician indicate his liver disorder may be related to his IBS. Generally, evaluating a disability using either the corresponding or analogous Diagnostic Codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27. The ratings are averages, however, so that it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. In exceptional cases where the schedular rating is found to be inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b). Under Thun v. Peake, 22 Vet. App, 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found to be inadequate, the Board must then determine whether the claimant's disability picture exhibits other 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 has attendant thereto 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, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. In this case, the Veteran's IBS symptoms fit appropriately with the criteria found in Diagnostic Code 7319. While his symptoms have waxed and waned during the appeal period, he has been provided with a rating based on his most severe symptoms. His 30 percent rating for IBS is the highest rating provided by Diagnostic Code 7319. As such, the Board appropriately evaluated his symptoms under an alternative Diagnostic Code. Diagnostic Code 7323 criteria addresses moderate, moderately severe, severe or pronounced ulcerative colitis with infrequent, frequent, and numerous attacks. This allows the Board to apply a variety of symptoms to the foundational criteria; however, as Diagnostic Code 7323 provides high ratings for gastrointestinal disorders, the severe and pronounced criteria also include overall health implications such as anemia, malnutrition, debility, and "other serious complications." While the Veteran's IBS symptoms were severe under Diagnostic Code 7319, which directly addressed diarrhea, constipation and abdominal distress (the Veteran's general symptoms), his IBS symptoms did not include overall affects on his general health such that they warrant a severe or pronounced rating under 7323. As such, the Veteran's IBS symptoms were addressed under the 7319 criteria, and higher ratings were contemplated but not warranted under an alternative, but applicable Diagnostic Code. In short, the Board finds that the evidence does not present such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Thus, pursuant to Thun, the Board need not move to the next step of determining whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." In summary, as the Veteran's symptoms are adequately addressed by the schedular criteria under Diagnostic Codes 7319 and 7323, the Board finds that referral for an extraschedular evaluation for IBS is not warranted. ORDER A disability rating in excess of 30 percent for IBS, diagnosed as Crohn's disease, to include on an extraschedular basis, is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs