Citation Nr: 1435962 Decision Date: 08/12/14 Archive Date: 08/20/14 DOCKET NO. 11-27 585 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to an increased disability rating in excess of 60 percent for ulcerative colitis. 2. Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: Massachusetts Department of Veterans Services ATTORNEY FOR THE BOARD D. Chad Johnson, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1996 to November 2000. This appeal comes to the Board of Veterans' Appeals (Board) from a December 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The Board has reviewed the Veteran's physical claims file and any electronic records maintained in the Virtual VA system and the Veterans Benefits Management System (VBMS) to ensure complete review of the evidence of record. The issue of entitlement to a total disability rating based upon individual unemployability (TDIU) is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's service-connected ulcerative colitis is manifested by severe symptoms including flare-ups associated with chronic, alternating constipation and diarrhea, nausea and vomiting, abdominal bloating, distension, and pain, some malaise and lethargy, and weight loss, controlled with prescribed medication; however, pronounced symptoms of marked malnutrition and anemia, or serious complications, such as liver abscess, were not manifested during any period on appeal. CONCLUSION OF LAW The criteria for an increased disability rating in excess of 60 percent for ulcerative colitis have not been met for any period on appeal. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 4.3, 4.114, Diagnostic Code (DC) 7323 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Due Process VA has statutory duties to notify and assist claimants in substantiating a claim for VA benefits. See, e.g., 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013). With respect to increased rating claims, VA must provide generic notice of the evidence needed to substantiate the claim, namely evidence demonstrating a worsening or increase in severity of the disability, and general notice of how disability evaluations and effective dates are assigned. Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 97-103 (2010). The Veteran received appropriate notice regarding his increased rating claim in August 2010. Regarding the duty to assist, the RO has obtained the Veteran's service treatment records, VA treatment records, and private treatment records, and associated such records with the claims file. The Veteran was afforded relevant VA examinations in September 2010 and November 2013. The Board has considered the Veteran's November 2013 statement alleging that the November 2013 VA examination was inadequate; however, as discussed further herein, the examinations are adequate because they are based on thorough examinations wherein the examiners obtained and considered the Veteran's prior medical history, and most importantly, described the Veteran's ulcerative colitis disability in sufficient detail to allow evaluation of the severity of his disability by the Board. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). To the extent that complete VA treatment records have not been obtained, the Board acknowledges that VA treatment records are considered in VA's constructive possession. See Bell v. Derwinski, 2 Vet. App. 611 (1992). However, the Board concludes that it is unnecessary to obtain these records because they would not be determinative of the claim on appeal. See id. In this regard, the Board notes that the November 2013 VA examination report reflects that the examiner reviewed the Veteran's VA Computerized Patient Record System (CPRS). Moreover, the examination report references specific VA treatment, including a June 2009 colonoscopy, November 2010 CBC lab test, and a September 2013 gastroenterology consultation note which references the Veteran's current medication and most recent colonoscopy in May 2012. Therefore, as VA examination reports adequately portray the Veteran's disability picture, a remand is not required to obtain complete VA treatment records, as this would only serve to further delay adjudication of the Veteran's claim on appeal. See generally Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Neither the Veteran nor his representative has identified any additional evidence to be added to the claims file. As all necessary development has been accomplished, no further notice or assistance is required for a fair adjudication of the Veteran's claim and, therefore, appellate review may proceed without prejudice to the Veteran. II. Increased Rating - Ulcerative Colitis Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects the ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2013). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3 (2013). 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 rating will be assigned. 38 C.F.R. § 4.7 (2013). 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. See Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Id. The Veteran filed his claim for an increased rating for ulcerative colitis in June 2010; therefore, the relevant temporal period is from June 2009 to the present. Additionally, the Board has considered the applicability of staged ratings, but does not observe any distinct times during the appeal period where the Veteran's symptomatology warrants such a rating. The Veteran's service-connected ulcerative colitis is currently rated as 60 percent disabling under 38 C.F.R. § 4.114, Diagnostic Code (DC) 7323 (2013). Under DC 7323, a 60 percent disability rating is assigned for severe ulcerative colitis with numerous attacks a year and malnutrition, with health only fair during remissions. Id. A maximum 100 percent disability rating is warranted for pronounced ulcerative colitis resulting in marked malnutrition, anemia, and general debility, or with serious complication such as liver abscess. Id. The Board notes that as the initial criteria for a 100 percent disability rating under DC 7323 are written in the conjunctive, in the absence of ulcerative colitis with serious complication, such as liver abscess, all three of the initial elements of pronounced ulcerative colitis (marked malnutrition, anemia, and general debility) must be met. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met); compare Johnson v. Brown, 7 Vet. App. 95 (1994) (only one disjunctive "or" requirement must be met in order for an increased rating to be assigned). The Board finds that the preponderance of the evidence is against an increased disability rating in excess of 60 percent for the Veteran's ulcerative colitis. Despite the severe symptoms that he experienced at that time, the evidence of record does not show that the Veteran's ulcerative colitis resulted in marked malnutrition, anemia, and general debility, or with serious complications, such as liver abscess, during the prescribed period. VA treatment records from February 2010 to August 2010 reflect that the Veteran's ulcerative colitis symptoms were well-controlled through the use of prescribed mesalamine. An August 2010 progress note documents that a flare prevented him from completing school as scheduled in the fall. An August 2010 letter from the Veteran's VA treating physician reports that the Veteran's ulcerative colitis prevented him from enrolling in school from March 2003 through December 2009 due to constant flare-ups and extreme discomfort and that he also had to utilize sick time when his condition became too severe to endure during the workday. However, the physician's letter also reports that the Veteran's current medical treatment was successful in combating the effects which previously prevented his school attendance; as a result, he had been enrolled full-time since the fall of 2009 and with continued medical care and treatment, there should be minimal impact of successful completion. A May 2012 VA colonoscopy revealed diminutive, internal hemorrhoids, with an otherwise normal colon. The Veteran was afforded a VA examination in November 2010. He reported degenerative symptoms which affected his quality of life, including flare-ups one to two times per week lasting up to eighteen hours and consisting of abdominal cramping with urges to defecate, bloody stools, malaise and lethargy, nausea and vomiting, and chronic, alternating constipation and diarrhea. At the time of examination, the Veteran appeared well-developed, well-nourished, and in no acute distress, with no signs of malaise and normal nutritional status. He denied any hospitalization for the condition, but reported that he had to take sick days from his job and had to postpone his schooling due to flare-ups and irritation from his condition. Physical examination revealed generalized tenderness over the abdomen, with no intestinal fistula, and no findings of hepatomegaly, distension of the superficial veins, striae on the abdominal wall, ostomy, ventral hernia, ascites, splenomegaly, or aortic aneurysm. Rectal examination findings were normal, with no hemorrhoids, fissures, or masses noted. CBC diagnostic test results were within normal limits. There were no findings of anemia or malnutrition. The examiner diagnosed worsening ulcerative colitis based upon more frequent, intense, and longer-lasting periods of colitis which increasingly interfered with the Veteran's job, school, and daily life. Most recently, the Veteran was afforded a VA examination in November 2013. The examiner reviewed the Veteran's claims file and electronic patient records, and conducted an in-person examination of the Veteran. The Veteran reported symptoms of occasional bleeding during flare-ups which has lessened over time, a constant feeling of urgency and being bloated, and a pattern of a couple of relatively calm bowel movements per week with the remaining days having increased bowel irritability and bloating. The examiner documented that the Veteran's condition required constant medication for control, including a change in September 2013 to a newer formulation of mesalamine requiring a once daily dosage. Documented signs and symptoms of ulcerative colitis included alternating diarrhea and constipation, and abdominal distension, with frequent episodes of bowel disturbance with abdominal distress. The Veteran had weight loss attributable to his condition (current weight of 157 pounds and a baseline weight of 180 pounds), but no malnutrition, serious complications, or other general health effect attributable to his condition. CBC diagnostic testing in November 2010 revealed normal findings, and a June 2009 colonoscopy reviewed by the examiner revealed only mild proctitis without ulceration. Finally, the examiner stated that the Veteran's condition impacted his ability to work in that fecal frequency and urgency are generally incompatible with physical labor employment; however, with regard to sedentary employment, the examiner noted that if the Veteran were able to find a work environment with a restroom readily available, his condition would not be a significant impairment. He noted the Veteran's prior work history as a state police dispatcher and an account manager and further noted that the Veteran was a full-time student for the past three years and would graduate in May 2014. The Veteran's statement attached to his October 2011 VA Form 9 substantive appeal states that the September 2010 VA examiner documented a current level of severity at 100 percent. However, the Board has carefully reviewed the September 2010 examination report, as discussed in detail above, and can find no such conclusion by the examiner. Hence, to the extent that the Veteran's statement of the examiner's conclusion is inaccurate, it is afforded little probative weigh when compared to the objective, competent medical evidence of record. The Board has also considered the Veteran's reported symptoms as discussed above. The Veteran is competent to report his observable symptoms because this requires only personal knowledge as it comes to him through his senses, and the Board does not doubt the sincerity of the Veteran's belief that his service-connected ulcerative colitis is more severely disabling than the currently assigned 60 percent disability rating. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, the determination of marked malnutrition, anemia, and general debility, or serious complication such as liver abscess requires a level of medical expertise that the Veteran is not shown to possess. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In sum, a rating in excess of 60 percent is not warranted because the preponderance of the competent and probative evidence of record does not show symptoms consistent with pronounced ulcerative colitis during the appeal period. Specifically, while the Veteran has experienced severe flare-ups of his ulcerative colitis associated with chronic, alternating constipation and diarrhea, nausea and vomiting, abdominal bloating, distension, and pain, some malaise and lethargy, and weight loss, there have never been reports by the Veteran or objective medical findings of marked malnutrition, anemia, or serious complications, such as a liver abscess. The objective medical findings during the appeal period simply do not support the Veteran's assertion for the reasons stated above and clearly provide evidence against higher evaluations in excess of 60 percent for the entire period on appeal. Put another way, the Board finds the medical findings, which directly address the criteria under which the Veteran's service-connected ulcerative colitis is evaluated, to be more probative than his lay assessment of the severity of his ulcerative colitis. For the reasons discussed above, the preponderance of the evidence is against the Veteran's claim of entitlement to an increased disability rating in excess of 60 percent for ulcerative colitis, there remains no reasonable doubt to be resolved, and the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. Extraschedular Consideration The Board has also considered whether referral of the Veteran's claim to the Under Secretary for Benefits or the Director of the Compensation Service for consideration of an extraschedular evaluation is warranted. This is required where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2013). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating, otherwise, the schedular evaluation is adequate, and referral is not required. Id. at 116. The evidence does not indicate that Veteran's disability picture is not adequately contemplated by the applicable schedular rating criteria discussed above. The symptoms of the Veteran's ulcerative colitis were contemplated by and applied to the applicable rating criteria. Although DC 7323 allows for a higher rating than currently assigned, the Board has fully explained above why the higher 100 percent disability rating is not warranted. Further, notwithstanding the finding that the applicable schedular rating criteria are more than adequate in this case, the Board observes that the Veteran has not experienced frequent hospitalizations; rather, he denied any hospitalization due to his ulcerative colitis during the September 2010 VA examination. While he reported missing some work and school due to his ulcerative colitis, the 60 percent rating assigned contemplates severe ulcerative colitis with numerous attacks a year and malnutrition and only "fair" health. Further consideration as to whether the Veteran's disability picture includes exceptional factors is not needed, and referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. ORDER Entitlement to an increased disability rating in excess of 60 percent for ulcerative colitis is denied for the entire period on appeal. REMAND The United States Court of Appeals for Veterans' Claims (CAVC) has held that a claim of entitlement to a total disability rating based upon individual unemployability (TDIU) is part of an increased rating claim when such is reasonably raised by the Veteran or the record. See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). The Veteran has stated numerous times that his condition impacts all areas of his life, including requiring him miss work and utilize sick time during flare-ups. The September 2010 VA examiner noted that the Veteran lost his job in December 2008 due to his condition. Also, the November 2013 VA examiner stated that the Veteran's condition impacted his ability to work in that fecal frequency and urgency are generally incompatible with physical labor employment; however, he indicated the Veteran's condition might not be a significant impairment to sedentary employment. The Board finds the evidence of record discussed above is sufficient to raise the issue of a TDIU rating due to the Veteran's service-connected ulcerative colitis. The Board points out that the Veteran's service-connected ulcerative colitis, rated as 60 percent disability under DC 7323, meets the scheduler requirement for consideration of a TDIU rating under 38 C.F.R. § 4.16(a) (2013). Thus, upon remand, the Agency of Original Jurisdiction (AOJ) should address the matter of a TDIU rating in the first instance, to avoid any prejudice to the Veteran. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran and his representative with appropriate notice with respect to the claim for a TDIU rating and ask the Veteran to furnish any additional information and/or evidence pertinent to the TDIU claim. 2. Thereafter, arrange for any additional development indicated, including the possibility of a VA examination to determine whether the Veteran is precluded from securing or following a substantially gainful occupation (consistent with his education, training, and occupational experience) as a result of his service-connected ulcerative colitis. 3. Then, adjudicate the issue of entitlement to a TDIU rating. If the benefit sought is denied, issue a supplemental statement of the case (SSOC) to the Veteran and his representative and provide an appropriate opportunity to respond. This matter should then be returned to the Board for appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs