Citation Nr: 9905100 Decision Date: 02/24/99 Archive Date: 03/03/99 DOCKET NO. 92-24 073 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an increased disability evaluation for irritable bowel syndrome with Crohn's disease, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL The veteran and the veteran's wife ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The veteran had active service from December 1985 to October 1988. This matter came before the Board of Veterans' Appeals (Board) on appeal from a July 19, 1990 rating decision of the Cleveland, Ohio, Regional Office (RO) which, in pertinent part, denied an increased disability evaluation for the veteran's service-connected functional bowel syndrome. On July 20, 1990, the RO proposed to reduce the evaluations for the veteran's service-connected post-operative left knee injury residuals and left ankle fracture residuals from 30 to 10 percent and 10 percent to noncompensable, respectively. In October 1990, the RO effectuated the proposed reductions as of January 1, 1991. In January 1992, the veteran was afforded a hearing before a Department of Veterans Affairs (VA) hearing officer. In July 1992, the RO restored the 10 percent evaluation for left ankle fracture residuals. In August 1994, the Board remanded the veteran's claims to the RO for additional action which included consideration of his entitlement to a separate compensable evaluation for a post-operative left knee scar and reassessment of the October 1990 reduction of the evaluation for the post-operative left knee injury residuals under the criteria set forth by the United States Court of Veterans Appeals (Court) in Brown v. Derwinski, 5 Vet. App. 413 (1993). In December 1995, the RO increased the evaluation for post-operative left knee injury residuals from 10 to 20 percent retroactively from January 1, 1991 and denied a separate compensable evaluation for a post-operative left knee scar. In May 1996, the Board restored the 30 percent evaluation for post-operative left knee injury residuals; denied a separate compensable evaluation for a post-operative left knee scar; and remanded the issue of the veteran's entitlement to a compensable evaluation for functional bowel syndrome to the RO for additional development of the record. In October 1996, the veteran was afforded a hearing before a VA hearing officer. In April 1997, the RO recharacterized the veteran's service-connected gastrointestinal disability as irritable bowel syndrome with Crohn's disease evaluated as 10 percent disabling. The veteran is represented in this appeal by the Disabled American Veterans. Preliminary review of the record does not reveal that the RO expressly considered referral of the veteran's claim for an increased evaluation to the VA Undersecretary for Benefits or the Director, VA Compensation and Pension Service for the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1998). That regulation provides that to accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Undersecretary for Benefits or the Director, VA Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. The governing criteria for such an award is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1998) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court has further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Having reviewed the record with these mandates in mind, the Board finds no basis for further action on this question. VAOPGCPREC 6-96 (1996). FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's appeal. 2. The veteran's irritable bowel syndrome with Crohn's disease has been shown to be productive of no more than alternating diarrhea and constipation with more or less constant abdominal distress. There is no objective evidence of anemia or malnutrition. CONCLUSION OF LAW The criteria for a 30 percent evaluation for irritable bowel syndrome with Crohn's disease have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.20, 4.113, 4.114 and Diagnostic Code 7323 (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, it is necessary to determine if the veteran has submitted a well-grounded claim within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), and if so, whether the VA has properly assisted him in the development of his claim. A "well-grounded" claim is one which is plausible. A review of the record indicates that the veteran's claim is plausible and that all relevant facts have been properly developed. I. Historical Review The veteran's service medical records indicate that he was diagnosed with functional bowel syndrome. In March 1989, the RO established service connection for functional bowel syndrome and assigned a 10 percent evaluation for that disability. Clinical documentation from Jeffrey A. Lefkovitz, M.D., dated in July 1996 notes that the veteran underwent a colonoscopy which revealed findings consistent with Crohn's disease. In April 1997, the RO recharacterized the veteran's service-connected gastrointestinal disability as irritable bowel syndrome with Crohn's disease evaluated as 10 percent disabling. II. Increased Disability Evaluation Disability evaluations are determined by comparing the veteran's current symptomatology with the criteria set forth in the Schedule For Rating Disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1998). A 10 percent disability evaluation is warranted for moderate irritable colon syndrome (spastic colitis, mucous colitis, and etc.) manifested by frequent episodes of bowel disturbance with abdominal distress. A 30 percent evaluation requires severe irritable colon syndrome manifested by diarrhea or alternating diarrhea and constipation with more or less constant abdominal distress. 38 C.F.R. Part 4, Diagnostic Code 7319 (1998). The rating schedule does not specifically address Crohn's disease. In such situations, it is permissible to evaluate the veteran's service-connected disorder under provisions of the rating schedule which pertain to a closely-related disease or injury which is analogous in terms of the function affected, anatomical localization and symptomatology. 38 C.F.R. § 4.20 (1998). Crohn's disease is most closely analogous to ulcerative colitis. The veteran was informed of this determination by the RO and did not protest. A 10 percent disability evaluation is warranted for moderate ulcerative colitis with infrequent exacerbations. A 30 percent evaluation requires moderately severe ulcerative colitis with frequent exacerbations. A 60 percent evaluation requires severe ulcerative colitis with numerous attacks each year, malnutrition, and only a fair state of health during remissions. 38 C.F.R. Part 4, Diagnostic Code 7323 (1998). There are diseases of the digestive system, particularly within the abdomen, which, while differing in the site of pathology, produce a common disability picture characterized in the main by varying degrees of abdominal distress or pain, anemia, and disturbances in nutrition. Consequently, certain coexisting diseases in this area, as indicated in the instruction under the title "Diseases of the Digestive System," do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding as outlined in 38 C.F.R. § 4.14 (1998). 38 C.F.R. § 4.113 (1998). Evaluations under Diagnostic Codes 7301 through 7329 will not be combined with each other. A single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114 (1998). At a February 1990 VA examination for compensation purposes, the veteran complained of increasing diarrhea, cramping, loose bowels during the day and the night, and occasional fever. The veteran was reported to weigh 190.5 pounds. On examination, the veteran exhibited a soft abdomen and voluntary guarding. The VA examiner diagnosed the veteran with "poss[ible] laxative abuse." In a September 1990 written statement, the veteran's wife advanced that the veteran occasionally had to use the restroom even prior to finishing his meal. She stated that the veteran did not use laxatives. In his October 1990 notice of disagreement, the veteran related that: I cannot eat anything without having to go to the restroom not long after I eat. Sometimes I do not even get done eating when I have to go to the restroom. At a June 1991 VA examination for compensation purposes, the veteran complained of progressive gastrointestinal complaints. He denied taking any medication for his functional bowel syndrome. The veteran was reported to be overweight. The VA examiner observed that: The patient is quite hyperactive. In fact, very hyperactive in examination of the abdomen as well as the knee. He responded almost maximally to the lightest type of stimulation; however, when he was not aware of pressure in other areas, he did not respond to that pressure. There were no organs or masses palpable in the abdomen. There was no distention noted. The veteran was diagnosed with symptomatic irritable bowel syndrome by history. At the January 1992 hearing on appeal, the veteran testified that his gastrointestinal disability was manifested by bowel urgency, cramping, and constipation. He reported that he currently weighed approximately 175 pounds. He clarified that he had lost approximately 30 pounds in the preceding two months. He stated that he had not been diagnosed with anemia and did not take any medication for his gastrointestinal disability. A January 1992 gastroenterological evaluation from Michael G. Stiff, M.D., conducted for the VA conveys that the veteran complained of alternating "large liquid bowel movements" and constipation with associated extreme bowel urgency, cramping, "knife-like" suprapubic pain, nausea, and cold sweats. He clarified that his episodic liquid stools occurred during or just after meals. The veteran reported that his maximum weight during the preceding year was 205 pounds. He denied any nocturnal symptoms. On examination, the veteran exhibited diffuse tenderness on palpation of the left and right lower quadrants and the suprapubic area. There was no evidence of malnutrition. A February 1992 VA treatment record notes that the veteran complained of green bowel movements. He was reported to weigh 196.5 pounds. A February 1992 psychiatric evaluation from Sitaben Parbhoo, M.D., conducted for the VA notes that the veteran reported a good appetite and a 20 to 30 pound weight loss over the preceding four months. He denied having any "gastrointestinal problems." A July 1992 VA treatment record states that the veteran weighed 206.5 pounds. An April 1994 VA treatment record indicates that the veteran weighed 207 pounds. A September 1994 VA treatment record reflects that the veteran weighed 217.5 pounds. VA treatment entries dated in September 1995, January 1996, and April 1996 reflects that the veteran weighed 212, 211, and 214 pounds, respectively. A June 1996 VA nutrition clinic evaluation reports that the veteran wanted to lose weight and to eat a more balanced diet. He was reported to weigh 207 pounds and to be 110 percent of his ideal body weight. The treating VA medical personnel observed that the veteran was "in norm[al] nutr[ition] status" and sought to lose one to two pounds a week by decreasing his consumption of cola drinks. A July 1996 gastroenterological evaluation from Dr. Lefkovitz, M.D., conducted for the VA indicates that the veteran complained of "intermittent alternating constipation and diarrhea;" lower abdominal cramping; rectal bleeding; and a poor appetite. He clarified that his lower abdominal cramping and bowel movements principally occurred after meals. He reported a maximum weight of 212 pounds during the preceding year. He denied any weight loss, use of anti-colitis medication, anemia, or malnutrition. Dr. Lefkovitz noted that the veteran weighed 212 pounds. On examination, the veteran exhibited marked left and right lower quadrant tenderness, normal bowel sounds, and a soft belly. The doctor advanced impressions of "rectal bleeding possibly secondary to proctitis[,] internal hemorrhoids[,] ... ulcerative colitis, or Crohn's disease." He recommended that the veteran be afforded "a complete colonoscopy." A contemporaneous endoscopic evaluation revealed findings consistent with internal hemorrhoids and either Crohn's disease or regional ileitis. A July 1996 VA nutrition clinic treatment entry states that the veteran weighed 213 pounds; had gained six pounds in the preceding month; was at 112 percent of his ideal body weight; and was "in norm[al] nutr[ition] status." Private clinical documentation dated in August and September 1996 reflects that the veteran was seen for his gastrointestinal complaints. An August 1996 treatment entry states that the veteran reported decreased abdominal pain and formed stools. His weight was noted to be 220 pounds. He was prescribed Asacol and Prednisone. A September 1996 treatment entry states that the veteran complained of occasional lower abdominal pain and alternating constipation and diarrhea. The physician noted that the veteran had stopped taking his Prednisone and weighed 228 pounds. The veteran's weight was reported to have increased by 10 pounds. A September 1996 VA treatment record conveys that the veteran complained of alternating constipation and diarrhea and an occasional bloated sensation. He reported that he had discontinued his prescribed Prednisone. The veteran's weight was noted to be 225 pounds. An October 11, 1996 VA treatment record states that the veteran weighed 221 pounds. An October 11, 1996 VA gastrointestinal clinic treatment record reports that the veteran complained of "real bad" lower abdominal pain and alternating diarrhea and constipation. He stated that he had diarrhea after meals and a four-week course of Prednisone had produced no response. On examination, the veteran was reported to be "very obese" and to exhibit diffuse abdominal tenderness on palpation. The VA physician opined that he was "skeptical of [the diagnosis] of Crohn's especially considering the absence of response to [medication]." At the October 1996 hearing on appeal, the veteran testified that he experienced diarrhea; abdominal cramping associated with eating; and an adverse reaction to some foods. His symptoms were of such severity as to prohibit him from eating when he was required to be away from home. He stated that his VA physician had prescribed Prednisone for his gastrointestinal disability; the medication had caused him to gain weight; and the prescription was subsequently discontinued. He clarified that he had gained "almost 20 some pounds" within two weeks while on Prednisone and had begun to lose weight after discontinuing the medication. He advanced that he was entitled to a 30 percent evaluation for his service-connected gastrointestinal disability as he met all of the schedular criteria. The veteran's wife testified that the veteran had alternating diarrhea and constipation associated with most meals. She conveyed that recent diagnostic studies had revealed holes in the veteran's intestines. Clinical documentation from Dr. Lefkovitz dated in January 1997 relates that the veteran complained of a recent increase in his gastrointestinal symptoms including "quite a bit of lower abdominal cramping." The veteran was reported to take Prednisone and Asacol. He subsequently underwent colonoscopic evaluation which revealed a few aphthous erosions in the distal terminal ileum with mild ileitis and one aphthous erosion in the rectum. The physician commented that there was an improved appearance of the terminal ileum as compared with the last colonoscopy. A January 1997 VA treatment record reflects that the veteran weighed 222.75 pounds. A March 5, 1997 VA treatment entry notes that the veteran's weight was 225 pounds. A March 28, 1997 VA treatment entry notes that the veteran's weight was 221.75 pounds. In a May 1997 written statement, the veteran advanced that: Please be advised [that] my service[-]connected COLITIS, CHRON'S (sic) DISEASE and IRRITABLE BOWEL SYNDROME have greatly increased in severity. It seems as if I miss far more work than I can get. In the past three years[,] I have lost SIX jobs as a result of my service[-]connected disabilities acting up and creating non production (sic) and termination. Since my last examination[,] this conditions have nearly stopped me from functioning away from my home. I have diarrhea, then constipation, then diarrhea alternating constantly. Abdominal distress is nearly 24 hours a day, seven days a week, twelve months a year, if it continues at the same pace to July! (Emphasis in the original). A June 1997 gastroenterological evaluation from Mark W. Thurman, M.D., conducted for the VA relates that the veteran complained of decreased appetite; alternating diarrhea and constipation; "persistent and achy" right lower abdominal discomfort; and rectal bleeding. He reported five to six loose stools per day; no nocturnal loose stool; a 30 pound weight loss in the preceding two to three months; and discontinuance of his prescribed Prednisone. The veteran weighed 204 pounds. On examination, he exhibited active bowel sounds and mild right lower quadrant discomfort on palpation. Dr. Thurman conveyed that: The patient's history is suggestive of irritable bowel syndrome with alternating diarrhea and constipation being his normal bowel habit and that being associated with gassy abdominal discomfort. However, as of recent[,] the patient's abdominal discomfort has changed in character and has become localized to the right lower quadrant and this has been associated with frequent loose stool and intermittent rectal bleeding. The recent change in the patient's normal [gastrointestinal] symptoms are consistent with active Crohn's disease. It is my feeling that the patient is currently symptomatic from active Crohn's disease[,] but does have a background consistent with irritable bowel syndrome. The Board has reviewed the probative evidence of record including the veteran's testimony and statements on appeal. The veteran's service-connected gastrointestinal disability has been shown to be manifested by alternating diarrhea and constipation; bowel urgency during or shortly after meals; chronic lower abdominal discomfort; and evidence of intestinal erosions on colonoscopic evaluation. There is no clinical evidence of either malnutrition or anemia. Such findings merit an evaluation in excess of 10 percent. Clearly the veteran has coexisting abdominal manifestations. In applying the provisions of 38 C.F.R. § 4.114 (1998) to the instant appeal, the Board observes that the most recent gastroenterological evaluation of record determined that the veteran's current gastrointestinal symptoms arise from his active Crohn's disease rather than his irritable bowel syndrome. Therefore, the Board finds that the veteran's current gastrointestinal disability is predominately associated with his Crohn's disease and will evaluate the disability under the provisions of Diagnostic Code 7323. The veteran has repeatedly advanced during the pendency of his appeal that he has experienced episodic weight loss of between 20 and 30 pounds at a time as a result of his gastrointestinal disability. The Board notes that the clinical record belies such an assertion. Indeed, the veteran has been repeatedly found to have gained significant amounts of weight; to be over his ideal body weight; and to be obese. On occasion, the veteran has even sought out medical assistance to lose weight. Such evidence clearly establishes that the veteran does not suffer from malnutrition. There is no competent evidence reflecting that the veteran's service-connected gastrointestinal disability has had a significant impact on his overall health. Therefore, the Board concludes that a 30 percent evaluation is now warranted for irritable bowel syndrome with Crohn's disease. In part, the increased evaluation is based on the coexisting manifestations with elevation to the next higher rating of 30 percent. The severity of the veteran's overall gastrointestinal picture does not warrant a 60 percent evaluation. 38 C.F.R. §§ 4.113, 4.114 and Diagnostic Codes 7319, 7323 (1998). The 30 percent evaluation is the maximum evaluation assignable for functional bowel syndrome. There is no competent evidence of severe ulcerative colitis with numerous attacks, there is no evidence of malnutrition and there is no evidence that the veteran is in only a fair state of health during remissions. In essence, the veteran has presented numerous subjective statements which the Board is unable to completely discount at this time. The subjective statements support a 30 percent evaluation and no more. ORDER A 30 percent evaluation for irritable bowel syndrome with Crohn's disease is granted subject to the laws and regulations governing the award of monetary benefits. H. N. SCHWARTZ 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 granting less than the complete benefit, or benefits, sought on appeal is appealable to the Court 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. - 12 -