Citation Nr: 9935361 Decision Date: 12/21/99 Archive Date: 12/23/99 DOCKET NO. 96-51 566 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to a higher initial rating for service- connected irritable bowel syndrome, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Johnson, Associate Counsel INTRODUCTION The veteran served on active duty from June 1965 to June 1968, August 1968 to August 1974, February 1976 to February 1980, and from May 1987 to July 1994. These matters came to the Board of Veterans' Appeals (Board) from decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In March 1982, the RO granted entitlement to service connection for chronic sinusitis, left ear hearing loss, and left ear otitis externa, and assigned a noncompensable rating for each disability. In that same decision, the RO denied entitlement to service connection for diabetes mellitus, a stomach condition and lumbosacral strain. Notice of the RO's decision and information concerning the veteran's appellate rights were addressed in a March 1982 letter. In April 1982, VA received a statement from the veteran indicating his intent to appeal the rating of his sinus condition, and the denial of service connection for diabetes mellitus and lumbosacral strain. Therefore, the RO's decision was not final with regard to the issues addressed in that notice of disagreement. However, the RO has treated the issue of service connection for a low back disability as whether new and material evidence has been submitted to warrant reopening the claim, and refused to reopen the claim in August 1995. Since this is not the case, the Board will address the issue as noted on the page of this decision. Regarding the claim of service connection for diabetes mellitus and the rating of his sinusitis, the veteran should be issued a statement of the case as required under 38 C.F.R. § 19.26. These issues are remanded to the RO, rather than referred. Manlincon v. West, 12 Vet. App. 238 (1999). In August 1995, the RO made the following determinations: denied service connection for hypercholesterolemia, defective vision, low blood pressure, and headaches; denied an increased rating for left ear hearing loss; determined that new and material evidence had not been submitted to warrant reopening the claim of service connection for a back condition; and granted service connection for irritable bowel syndrome and assigned a noncompensable rating, effective August 1, 1994. In August 1996, the veteran submitted his notice of disagreement with the denial of service connection for headaches, the evaluation of his left ear hearing loss, the refusal to reopen the claim for a back condition, and the rating of his irritable bowel disability. A statement of the case was issued in October 1996. In November 1996, the veteran filed a substantive appeal and a request for a hearing before a hearing officer at the RO. In January 1997, the veteran appeared and testified before a hearing officer at the RO. At that time, he withdrew his claim for an increased rating for left ear hearing loss. The Board notes that 38 C.F.R. § 20.204(b) requires substantive appeals to be withdrawn in writing at any time before the Board promulgates a decision. Although not in writing, the Board points out that the United States Court of Appeals for Veterans Claims (Court) has held that the transcript of testimony offered at a hearing did meet the requirement of being "in writing." Tomlin v. Brown, 5 Vet. App. 355 (1993). While the Court in that case was faced with the question of whether or not there was a valid notice of disagreement, the Court's reasoning applies to the present case as well. In view of the holding in Tomlin, the Board finds that the transcript of the veteran's testimony prepared on January 31, 1997 constitutes a withdrawal in writing, and fulfills the requirements of 38 C.F.R. § 20.204(b). Thus, the issue is not before the Board for appellate review. In a July 1997 decision, the hearing officer determined that an increased (compensable) evaluation of 10 percent was warranted for the veteran's service-connected irritable bowel syndrome. As a 10 percent evaluation is not the maximum rating available for this disability, the appeal continues. AB v. Brown, 6 Vet. App. 35 (1993). FINDINGS OF FACT 1. All available relevant evidence necessary for disposition of the veteran's appeal has been obtained by the RO. 2. The veteran's recurring lumbosacral strain condition was first documented in 1974, near the end of a 9 year period of almost continuous service. 3. The veteran's service-connected irritable bowel syndrome is manifested by daily bouts of constipation and diarrhea generally relieved by medication, which is representative of moderate irritable colon syndrome with frequent episodes of bowel disturbance with abdominal distress. CONCLUSIONS OF LAW 1. Lumbosacral strain was incurred in wartime service. 38 U.S.C.A. §§ 1110, 5107 (West 1991). 2. The criteria for an evaluation in excess of 10 percent for service-connected irritable bowel syndrome have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.114, Diagnostic Code 7319 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection for a Low Back Disability Factual Background The service medical records show that in July 1974, the veteran was treated for a muscle spasm of the low back. The spine was normal on the veteran's January 1976 enlistment examination. In November 1976, the veteran complained of and was treated for chronic low back pain. It was noted that the veteran had suffered from chronic low back pain for 16 years. The spine was normal on an examination conducted in January 1977, and at the time of his separation examination of October 1979. A March 1978 lumbar spine series did not reveal any significant abnormalities. Private treatment records dated in October 1981 reflect the treatment and diagnosis of lumbosacral instability with or without spondylolysis L5 on the left. At that time, it was noted that the veteran had a nonspecific history of back pain dating back for ten years, and that the veteran did not recall any specific etiologic or traumatic event. He claimed that he had been examined on multiple occasions, and that physicians have not been able to give a specific diagnosis for his condition, and that treatment had not brought about any relief. On VA examination of January 1982, the x-ray of the lumbar spine revealed minimal narrowing of L5-S1 interspace, otherwise nothing abnormal was seen. The veteran reported that he had experienced problems with his back during service, and that he was told that he has degenerative lumbar discs when treated in 1981. The examiner diagnosed lumbosacral strain. The veteran's spine was normal at the time of his enlistment examination of June 1986, his National Guard enlistment examination of April 1987, and on an examination conducted in May 1988. When he was examined in May 1992, the veteran reported that he had a history of recurrent back pain, and the spine was normal on examination. At the time of his retirement examination in April 1994, the veteran reported a medical history that included recurrent back pain. It was noted that the back pain was stable and secondary to muscle strain. The examination revealed a normal spine. An August 1994 examination revealed a normal spine, and the veteran did not report a history of recurrent back pain at that time. When the veteran was afforded a VA examination in October 1994, he reported that his neck and low back were achy, and that there had been no specific injury to either of those areas. The examiner did not find any cervical and lumbar spine disorders. X-rays revealed normal vertebral bodies and alignment. In November 1994 letters, several National Guard recruiters reported that they served with the veteran for about eight years. They recalled that he had ongoing problems with his back. On VA examination of October 1995, the veteran reported that he has had problems with back pain for 20 years, and that it has worsened over the years. He reported that he was involved in a jeep accident in 1968 while in Korea, and other accidents at Fort Dix in 1969 and 1970. He did not complain of back pain at the time of the examination. He was not on medication. The x-rays revealed minor spondylosis deformans with some sclerosis and hypertrophy of apophyseal joints in the lower lumbar spine. In a July 1996 letter, Dr. Angela F. Jannelli reported that x-rays taken by VA and MRIs came back as normal. The examination revealed decreased lumbar spine motion, and Dr. Jannelli opined that the veteran was suffering from osteoarthritis of the lumbar spine. X-rays were taken and revealed evidence of degenerative disc disease with degenerative osteoarthritic changes at L5-S1. There was minimal spurring at L1-2. In January 1997, the veteran testified that he had complained of back pain when he was in service, and that he was never given a clear diagnosis or explanation of his condition. Eventually, he was sent to Dr. Jannelli, a rheumatologist. He estimated that his back problems dated back to the early 1970s. During a break in his period of service around 1974 to 1976, he worked as a trolley car driver and was involved in one accident where he was rear-ended in traffic. However, the accident did not result in any injuries. He did not recall having any back injuries. He did report that he was involved in automobile accidents during service in 1966, 1969 and 1970. Until his separation from service in 1994, he made numerous complaints about his back pain and was placed on profile on several occasions because of his back condition. On VA examination of February 1997, the examiner reported a diagnosis of sprain/strain syndrome of the lower back. Legal Analysis The Board finds that the veteran's claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). Also, the Board is satisfied that all relevant facts have been properly developed and that the VA has fulfilled its duty to assist the veteran as mandated by 38 U.S.C.A. § 5107 (West 1991) and 38 C.F.R. § 3.103(a) (1999). Under applicable criteria, service connection will be granted for a disability resulting from personal injury suffered or disease incurred or aggravated during service. 38 U.S.C.A. §§ 1110, 1131 (West 1991). If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (1999). Service connection may also be granted for a disease first diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). In this case, the veteran has reported that he was involved in three automobile accidents during service, but he did not indicate if his low back was injured at those times. He also indicated that his back was not injured during a trolley car accident that occurred in between two periods of service. Also, the medical reports and stated opinions of record do not indicate that any of the low back conditions diagnosed are related to any specific injuries, including those that the veteran reported. Therefore, the evidence does not tend to show that the current disability is due to an injury during service. A veteran who served during a period of war or during peacetime service after December 31, 1946, is presumed in sound condition except for defects noted when examined and accepted for service. Clear and unmistakable evidence that the disability manifested in service existed before service will rebut the presumption. 38 U.S.C.A. § 1111 (West 1991). The first documentation of a back condition is the finding of muscle spasm in July 1974. Then in late 1976 the veteran gave a history of chronic low back pain. Lumbosacral strain was noted shortly after the period of service ending in 1980. Recurrent back pain due to muscle strain was described during the last period of service, and arthritis was identified little more than a year after the last discharge in 1994. There is no clear and unmistakable evidence that a back condition predated service entirely, and it seems clear that the veteran's complaints and objective findings began while he was on active duty. Though no specific injury is implicated, service connection on the basis of incurrence in 1974 is warranted. Here, the preponderance of the evidence favors the veteran's claim of service connection for lumbosacral strain. Therefore, the application of the benefit of the doubt doctrine contemplated by 38 U.S.C.A. § 5107 (West 1991) is inappropriate in this case. Higher Initial Rating for Irritable Bowel Syndrome Factual Background The service medical records document the veteran's problems with a spastic colon. On VA examination of January 1982, the veteran weighed 153 pounds and his maximum weight for the year had been 166 pounds. His build and state of nutrition was found to be slender. The examiner reported a diagnosis of probable irritable colon syndrome. The veteran was afforded a VA examination in October 1994. At that time, the veteran complained of chronic constipation. His weight had been steady. He was on Dicyclomine and Lactulose for his bowel symptoms. The belly examination was unremarkable. The examiner diagnosed irritable bowel syndrome characterized by constipation. By rating action of August 1995, service connection for irritable bowel syndrome was established. A noncompensable rating was assigned, effective August 1, 1994. In an August 1996 letter, Dr. Elliott B. Frank reported that he examined the veteran in November 1995. It was noted that the veteran had been treated with Lactulose and Bentyl with good results. He did experience some abdominal gaseousness, but it was not worse when he was off or on the Lactulose. His weight had been stable, and appetite was good. He denied that he had any new gastrointestinal symptoms. The examination revealed that he was in no apparent distress. The abdomen was soft with active bowel sounds, and there were no organomegaly or masses. In a January 1997 memorandum, Dr. Frank reported that he spoke with the veteran that day about his functional bowel disease. The veteran informed him that he had been experiencing a great deal of abdominal bloating, discomfort and gaseousness with occasional nausea. The Lactulose and Bentyl provided some relief. He had frequent difficulty initiating a bowel movement and at other times he had cramps with diarrhea, which created difficulty with long car rides and having to make frequent trips to the bathroom during work. Oftentimes he goes to the bathroom, but there would not be any bowel activity. Occasionally, he has had rectal discomfort and bleeding which he assumes is secondary to his hemorrhoids. In January 1997, the veteran testified that he has stomach distress on a daily basis, which includes bloating, discomfort and occasional pain in the lower trunk area. He always has a lot of gas. He experiences difficulty in going to the bathroom. He must take his medication on a daily basis. At times, he still has constipation even though he takes the medication. He has bouts of diarrhea in the morning, and he has to get up a couple of hours early in the morning before going to work. The condition is unbearable for about most of the day. He sees a physician on a regular basis. In a January 30, 1997 letter to another one of the veteran's physicians, Dr. Frank reported that a flexible sigmoidoscope was performed. The examination revealed that the veteran was in no apparent distress. The abdomen was soft with active bowel sounds, and there was no organomegaly or masses. The sigmoidoscopic examination was performed to 60 centimeters. The mucosa was normal and polyps were not identified. Small external hemorrhoids were seen. The veteran was to continue taking Bentyl and he was to switch from Lactulose to Fibercon. On VA examination of February 1997, the examiner noted that the abdomen was soft and nontender. There were normal active bowel sounds, and no evidence of organomegaly. The examiner reported an impression of irritable colon syndrome dating back 20 years. In a July 1997 decision, the hearing officer determined that an increased (compensable) evaluation of 10 percent was warranted for the veteran's service-connected irritable bowel syndrome, effective August 1, 1994. On VA examination of August 1998, the examiner noted that the claims folder was not available. The veteran reported that he was experiencing bloating and irregular bowel movements, and that he takes medication for the condition. The examination of the abdomen revealed positive bowel sounds. The examiner diagnosed irritable bowel syndrome. On VA examination of October 1998, the veteran reported that he was experiencing constipation, and that he was using fiber and stool softeners. He also noted that he suffers from abdominal cramps about four to five times a day, which are relieved by the use of Hyoscyamine and Butylbromide. In the past, he has had diarrhea and food intolerance, and the gastrointestinal work-up has been negative. The abdominal examination showed a soft, nontender abdomen with normal active bowel sounds. No masses were noted. The examiner diagnosed irritable bowel syndrome, manifested by constipation and diarrhea. At that time, he did not have diarrhea, and the condition was manifested by constipation. The frequency of abdominal distress is about four to five times a day and relieved by the use of medication. Legal Analysis The Board finds that the veteran's claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). The Court has held that, when a veteran claims that a service-connected disability has increased in severity, the claim is well grounded. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). The Board is also satisfied that all relevant facts have been properly developed and that VA has fulfilled its duty to assist the veteran as mandated by 38 U.S.C.A. § 5107(a) and 38 C.F.R. § 3.103(a) (1999). Disability evaluations are based upon the average impairment of earning capacity resulting from a disability. 38 U.S.C.A. § 1155 (West 1991). 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 (1999). Consideration is to be given to all other potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In this case, the veteran is in disagreement with the initial rating assigned for his irritable bowel syndrome. Thus the Board must consider the rating, and, if indicated, the propriety of a staged rating, from the initial effective date forward. See Fenderson v. West, 12 Vet. App. 119 (1999). With regard to the disability at issue, the Board finds that the evidence does not demonstrate that there was in increase or decrease in the disability that would suggest the need for staged ratings. Service connection is currently in effect for irritable bowel syndrome, rated 10 percent disabling under the provisions of 38 C.F.R. § 4.114, Diagnostic Code 7319 (1999). Diagnostic Code 7319 contemplates irritable colon syndrome. A 10 percent rating is assigned for moderate irritable colon syndrome when there are frequent episodes of bowel disturbance with abdominal distress. 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. In this case, the Board finds that the disability picture presented by the evidence does not meet the criteria for a 30 percent rating. It is clear that the veteran frequently experiences symptoms such as constipation and diarrhea. However, the evidence also shows that for the most part, the symptoms are relieved by the regular use of prescribed medication. Therefore, there has not been a showing of constant abdominal distress. Here, the disability picture presented indicates that the irritable bowel syndrome is moderate, as required for a 10 percent rating, and there is not a question as to which of the two evaluations should apply. 38 C.F.R. § 4.7 (1999). The Board has considered all other potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). After a careful review of the available Diagnostic Codes and the medical evidence of record, the Board finds that Diagnostic Codes other than 7319, do not provide a basis to assign an evaluation higher than the 10 percent rating currently in effect. Here, the preponderance of the evidence is against the veteran's claim, therefore the application of the benefit of the doubt doctrine contemplated by 38 U.S.C.A. § 5107 (West 1991) is inappropriate in this case. ORDER Entitlement to service connection for lumbosacral strain has been established, and the appeal is granted. Entitlement to a higher initial rating for service-connected irritable bowel syndrome has not been established, and the appeal is denied. (CONTINUED ON NEXT PAGE) REMAND The claims of service connection for diabetes mellitus and a higher initial rating for sinusitis have technically been pending since the veteran's notice of disagreement in 1982. He is entitled to a statement of the case on these issues (the recent statement of the case regarding sinusitis is inadequate in view of the appeal period beginning much earlier). Accordingly, these issues are remanded to the RO for the following: The RO should issue a statement of the case addressing service connection for diabetes mellitus and a higher initial rating for sinusitis. Thereafter, subject to current appellate procedures, including receipt of a timely substantive appeal, the case should be returned to the Board for further appellate consideration, if appropriate. The appellant need take no further action unless otherwise informed, but may submit additional evidence and argument on the matter or matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Veterans Appeals for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1997) (Historical and Statutory Notes). In addition, VBA's ADJUDICATION PROCEDURE MANUAL, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21- 1, Part IV, paras. 8.44-8.45 and 38.02-38.03. J. E. Day Member, Board of Veterans' Appeals