Citation Nr: 0729720 Decision Date: 09/20/07 Archive Date: 10/01/07 DOCKET NO. 03-26 519 ) 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 rated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Simone C. Krembs, Associate Counsel INTRODUCTION The veteran served on active duty from May 1941 to October 1945. This matter comes before the Board of Veterans' Appeals (Board) from an August 2001 rating decision of a Department of Veterans Affairs Regional Office (RO) that denied an increased rating for ulcerative colitis. In April 2006, the Board remanded the claim for additional development. FINDING OF FACT The veteran's ulcerative colitis is manifested by frequent exacerbations consisting of alternating diarrhea and constipation, with more or less constant abdominal distress. CONCLUSION OF LAW The criteria for an increased disability rating of 30 percent, but not greater, for ulcerative colitis have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.114, Diagnostic Codes (DC) 7323 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION Increased Rating Ratings for service-connected disabilities are determined by comparing the symptoms the veteran is presently experiencing with criteria set forth in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2006). Separate diagnostic codes identify the various disabilities. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2006). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3 (2006). Also, when making determinations as to the appropriate rating to be assigned, VA must take into account the veteran's entire medical history and circumstances. See 38 C.F.R. § 4.1 (2006); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). 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, 58 (1994). Ratings for service-connected disabilities are determined by comparing the veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities (hereinafter "Rating Schedule"), which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4. 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 (2006). 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; 38 C.F.R. § 4.113 (2006). Ratings under DCs 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348, inclusive, 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. The veteran's ulcerative colitis is rated 10 percent disabling under DC 7323. The veteran has also been diagnosed with gastritis and irritable bowel syndrome. Accordingly, the Board finds that the diagnostic codes pertaining to those disabilities (7307 and 7319) are also applicable. Effective July 2, 2001, the rating criteria used to determine the severity of disabilities affecting the digestive system were revised. However, there were no changes to DC 7323, and no substantive changes to either DC 7307 or DC 7319. Diagnostic Code 7323 provides for a 10 percent disability rating where there is moderate ulcerative colitis with infrequent exacerbations. A 30 percent rating is warranted for moderately severe ulcerative colitis with frequent exacerbations. A 60 percent rating is warranted for severe ulcerative colitis with numerous attacks per year and malnutrition, with only fair health during remissions. A maximum 100 percent rating is warranted for pronounced ulcerative colitis that results in marked malnutrition, anemia, and general debility, or where there is ulcerative colitis with serious complications such as liver abscesses. 38 C.F.R. § 4.114, DC 7323. Clinical records dated from March 2001 to June 2006 show that the veteran sought medical attention from numerous specialists for frequent complaints of abdominal distress, consisting of alternating bouts of diarrhea and constipation, and rectal bleeding. Records dated in June 2003 show that the veteran was hospitalized for rectal bleeding after experiencing daily episodes of loose bowel movements associated with rectal irritation, and that at times he had experienced episodes of incontinence. His appetite, however, was noted to have been preserved, and the veteran's weight had remained stable. He denied having experienced fever or chills. The assessment at that time was irritable bowel/spastic colitis. Subsequent records dated to June 2006 show continued complaints of alternating diarrhea and constipation, which occasionally required the use of diapers secondary to bowel incontinence. Records dated from March 2001 to June 2006 do not show that the veteran had malnutrition or only fair health during remissions. In order to ascertain the current level of severity of the veteran's service-connected ulcerative colitis, in December 2006 VA obtained the opinion of a specialist. After reviewing the record, the examiner determined that the veteran's symptomatology was consistent with a diagnosis of ulcerative colitis in that he had been treated for rectal bleeding, but inconsistent with a diagnosis of ulcerative colitis in that complaints of alternating bouts of diarrhea and constipation were more consistent with a diagnosis of irritable bowel syndrome. Because of these inconsistencies, the examiner concluded that he was unable to make an assessment as to the current level of severity of the veteran's service-connected disorder. While the December 2006 examiner determined that some of the veteran's symptomatology (alternating bouts of diarrhea and constipation) was more closely aligned with a diagnosis of irritable bowel syndrome than with a diagnosis of ulcerative colitis, the Board finds that because irritable bowel syndrome is a chronic multisymptom illness defined by a cluster of symptoms that overlap with symptoms of other digestive disabilities, the veteran's frequent complaints of alternating bouts of diarrhea and constipation, together with rectal bleeding, which the examiner noted is consistent with a diagnosis of ulcerative colitis, demonstrate moderately severe ulcerative colitis with frequent exacerbations, entitling him to an increased rating of 30 percent. See 38 C.F.R. § 3.317 (2006). With regard to whether the veteran is entitled to a rating in excess of 30 percent, however, the Board finds that he is not. At no time has the veteran been shown to have malnutrition or only fair health during remissions. Having determined that the veteran is entitled to an increased rating of 30 percent, but no more, under DC 7323, the question remains as to whether the veteran is entitled to a rating in excess of 30 percent under either of the remaining applicable diagnostic codes, DCs 7307 and 7319. Diagnostic Code 7307 provides that a 30 percent rating is warranted for chronic gastritis with multiple small eroded or ulcerated areas, and symptoms. A 60 percent rating is warranted for chronic gastritis with severe hemorrhages, or large ulcerated or eroded areas. C.F.R. § 4.114, DC 7307. The veteran was diagnosed with gastritis following a March 2001 EGD. At that time, the veteran complained of epigastric distress involving nausea and diarrhea. Since that time, the veteran has, on occasion, continued to complain of such symptoms. However, severe hemorrhages have never been identified or diagnosed. Therefore, the veteran is not entitled to a higher rating under this diagnostic code. Diagnostic Code 7319, under both the previous and revised versions, provides for a maximum 30 percent rating where there is severe irritable colon syndrome manifested by diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. 38 C.F.R. § 4.114 DC 7319. As discussed above, the Board finds that the veteran is entitled to a 30 percent rating based upon symptomatology including alternating diarrhea and constipation. As this diagnostic code does not provide for a rating in excess of 30 percent, DC 7319 cannot serve as a basis for an increased rating. The Board has considered whether a higher evaluation may be granted under other potentially applicable diagnostic codes. However, the other diagnostic codes for gastrointestinal diseases are not applicable to the veteran's disorder as they regard other conditions for which he is not service- connected. The weight of the evidence demonstrates that the veteran's gastrointestinal disorder warrants an increased rating of 30 percent but no higher. The "benefit-of-the-doubt" rule has been considered in making this decision. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 50 (1990). Duties to Notify and Assist the Appellant Upon receipt of a complete or substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. This notice requires VA to indicate which portion of that information and evidence is to be provided by the claimant and which portion VA will attempt to obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. § 3.159 (2006). The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim, or something to the effect that the claimant should "give us everything you've got pertaining to your claim(s)." Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the RO sent correspondence in July 2001, September 2003, and April 2006; rating decisions in August 2001 and August 2003; and a statement of the case in August 2003. These documents discussed specific evidence, the particular legal requirements applicable to the claim, the evidence considered, the pertinent laws and regulations, and the reasons for the decisions. VA made all efforts to notify and to assist the appellant with regard to the evidence obtained, the evidence needed, the responsibilities of the parties in obtaining the evidence, and the general notice of the need for any evidence in the appellant's possession. The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. There has been no prejudice to the appellant, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically declining to address harmless error doctrine); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the final adjudication in the June 2007 supplemental statement of the case. In addition, all relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has also obtained a medical opinion in relation to this claim. Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. ORDER An increased rating of 30 percent, but not greater, for ulcerative colitis is granted, subject to the laws and regulations governing the disbursement of monetary benefits. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs