Citation Nr: 9902982 Decision Date: 02/01/99 Archive Date: 02/10/99 DOCKET NO. 98-19 042 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased rating for ulcerative colitis, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: R. Edward Bates, Attorney at Law ATTORNEY FOR THE BOARD M. J. Bohanan, Counsel INTRODUCTION The appellant served on active duty from July 1983 to August 1984. This appeal arises from an October 1997, Department of Veterans Affairs Regional Office, St. Petersburg, Florida (VARO) rating decision, which denied the appellant entitlement to an increased rating for his service-connected ulcerative colitis, currently evaluated as 10 percent disabling. FINDINGS OF FACT 1. The appellant served on active duty from July 1983 to August 1984. 2. Current manifestations of the appellant's service- connected ulcerative colitis, include only minimal inflammation confined to the distal colon, with no more than infrequent exacerbations. CONCLUSION OF LAW Current manifestations of the appellant's service-connected ulcerative colitis, are no more than 10 percent disabling. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.20, 4.27, 4.114 Diagnostic Code 7323 (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is seeking an increased rating for his service- connected ulcerative colitis. Initially, the Board finds that the appellant has satisfied his statutory burden of submitting evidence which is sufficient to justify a belief that his claim is "well-grounded." 38 U.S.C.A. § 5107(a) (West 1991) and Murphy v. Derwinski, 1 Vet.App. 78 (1990). It is also clear that the appellant's claim has been adequately developed for appellate review purposes by VARO, and that the Board may therefore proceed to disposition of the matter. In evaluating the appellant's request for an increased rating, the Board considers all of the medical evidence of record, including the appellant's relevant medical history. Peyton v. Derwinski, 1 Vet.App. 282 at 287 (1991). Disability evaluations are determined by the application of a schedule of ratings based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1998). Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.1 (1998) requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 (1998) requires that medical reports be interpreted in light of the whole recorded history. Schafrath v. Derwinski, 1 Vet.App. 589 (1991). Where 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). Further, 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1998). All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (1998). The Board notes that in assigning an appropriate rating, the policy against "pyramiding" of disability awards enumerated by 38 C.F.R. § 4.14 must be considered. The assignment of a particular Diagnostic Code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet.App. 532, 538 (1993). One Diagnostic Code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a Diagnostic Code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet.App. 625, 629 (1992). In this case, the Board considered whether another rating code is "more appropriate" than the one used by the RO. See Tedeschi v. Brown, 7 Vet.App. 411, 414 (1995). The veteran is currently evaluated under 38 C.F.R. § 4.114, Diagnostic Code 7323 for ulcerative colitis at 10 percent. The schedular criteria call for a 10 percent disability evaluation for moderate symptoms of ulcerative colitis with infrequent exacerbations; a 30 percent disability evaluation is warranted for moderately severe symptoms with frequent exacerbations; a 60 percent disability evaluation is warranted for severe symptoms with numerous attacks a year and malnutrition, with the health only fair during remissions; and a 100 percent disability evaluation is warranted for pronounced symptoms resulting in marked malnutrition, anemia, and general debility, or with serious complication as liver abscess. 38 C.F.R. § 4.114 Diagnostic Code 7323 (1998). It must be noted that the terms such as "moderate" and "severe" are not defined in VA regulations. Rather than applying an inflexible formula, it is incumbent upon the Board to arrive at an equitable and just decision after having evaluated the evidence. 38 C.F.R. § 4.6 (1998). It should also be noted that the use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (1998). The Board will first review the appellant's pertinent medical history. The appellant received a medical discharge from service as a result of his ulcerative colitis. He was granted entitlement to service connection and awarded a 10 percent disability evaluation by VARO in an August 1984 rating decision. A VA examination was conducted in August 1985. The appellant reported that he had abdominal complaints aggravated by emotional tension. He reported 3 to 5 bowel movements per day. He claimed that perhaps twice per month he would have more severe episodes with frequent bowel movements, up to eighteen per day, and that he may have noted blood in his stool twice a week. He claimed to have some abdominal pain with bowel movements. Physical examination revealed that he was well developed. He was 6 feet 1 inch tall and weighed 147 pounds. There was no abdominal distention. There were no masses present. His liver, kidney and spleen were not palpable. There was no abdominal tenderness. His rectal examination was not remarkable. A barium enema was reported as normal. It was noted that to fully substantiate the diagnosis a colonoscopy would be required. However, this was a moderately invasive procedure that would not be justified if an adequate colonoscopy had been previously performed. VA outpatient treatment records reported that the appellant requested a surveillance colonoscopy in June 1997. He indicated that he had not had one since 1994. He was then scheduled for a colonoscopy in July 1997. A July 1997 treatment entry reported an impression of ulcerative colitis, "well controlled." His colonoscopy revealed no evidence of active ulcerative colitis. The physician commented that the changes were very mild and superficial in nature, and that there was nothing to suggest active ulcerative colitis. It was indicated that the appellant weighed 167 pounds. VA treatment records, dated from September 1997 to March 1998, reported that the appellant received medication and that his ulcerative colitis was stable. A VA intestine examination was conducted in June 1998. The appellant reported that his colitis had been fairly stable, although he claimed that he had exacerbations with stress. He reported that he generally had 2 stools per day and that they tended to be on the loose side, but that occasionally he had formed stools. He reported that he did see scant streaks of bright red blood occasionally. The examiner noted that a colonoscopy previously performed by him showed evidence of internal and external hemorrhoids, and revealed only minimal mottling in the rectum with a normal sigmoid colon, descending colon, transverse colon, and right colon. He further noted that this had been confirmed by biopsies and, in fact, the appellant's rectum was actually normal histologically as well. The appellant was entirely recovered from a history of viral encephalitis which had required a prolonged hospitalization with PEG tube feedings and tracheostomy. The appellant admitted that he had lost about 10 pounds in the past 2 weeks, but could not confirm this by weight and had no real symptoms of nausea or vomiting. Furthermore, he continued to have only two stools per day, identical to what he had had earlier that month at the time of the colonoscopy. He had no complaint of constipation and denied any abdominal pain. Physical examination revealed that the appellant was well developed and well nourished, in no apparent distress. His weight was 176.6 pounds. His abdomen showed an old PEG tube scar, but was otherwise unremarkable with normoactive bowel sounds. There were no masses or tenderness. The examiner diagnosed a history of ulcerative colitis, presently in "complete remission." The examiner reported that, although the appellant admitted stress-related "exacerbations" of his colitis, he had no evidence of residual colitis by biopsies. He noted that, certainly, the appellant may have a "superimposed" irritable bowel syndrome, and this may well be the cause of some of his symptoms. A July 1998 VA colonoscopy was performed. The appellant presented with minimal symptoms. The examination was done for surveillance in order to assess his colon and to perform surveillance biopsies. External hemorrhoids were noted. No fissures or tags were seen. Digital examination showed normal sphincter tone with no masses. Endoscope revealed a slightly mottled appearance to the rectum, but otherwise this was normal. There was no evidence of erosions or ulcerations. The vascular pattern was slightly mottled, but the mucosa itself appeared healthy. There was no evidence of any erosions, mottling or erythema of the sigmoid colon, descending colon, transverse colon, ascending colon or cecum. The impression was mild proctitis, rule out dysplasia and hemorrhoids. It was recommended that the appellant continue with sulfasalazine and high-fiber diet and sitz baths as needed. The examiner noted that the appellant would need a follow-up colonoscopy in 2 years. He noted that, although the appellant had had his colitis for 15 years and required surveillance colonoscopies, the degree of his inflammation appeared minimal and confined to the distal colon, suggesting ulcerative proctitis and surveillance every 2 years should be adequate. Biopsies revealed colonic mucosa without diagnostic abnormalities. Analysis With emphasis upon the appellant's most recent June 1998 VA examination and July 1998 colonoscopy, the Board finds that the appellant does not currently have moderately severe symptoms with frequent exacerbations warranting a 30 percent disability evaluation. 38 C.F.R. § 4.114 Diagnostic Code 7323 (1998). In short, the appellant has no more than moderate symptoms with infrequent exacerbations, warranting the currently assigned 10 percent evaluation. Specifically, the Board notes the diagnosis of ulcerative colitis is "complete remission" in June 1998; the minimal finding of inflammation confined to the distal colon on colonoscope examination with no diagnostic abnormalities found on biopsies; and the characterization of symptoms as "minimal". Accordingly, an increased evaluation is not warranted at this time. Moreover, application of the extraschedular provision is also not warranted in this case. 38 C.F.R. § 3.321(b) (1996). There is no objective evidence that this service-connected back disability presents such an exceptional or unusual disability picture, with such factors as marked interference with employment or frequent periods of hospitalization, as to render impractical the application of the regular schedular standards. Hence, referral by the RO to the Chief Benefits Director of VA's Compensation and Pension Service, under the above-cited regulation, was not required. See Bagwell v. Brown, 9 Vet.App. 337 (1996). ORDER An increased rating for ulcerative colitis is denied. NANCY I. PHILLIPS Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1998), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. - 8 -