Citation Nr: 1007347 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 05-39 717 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an initial rating in excess of 10 percent for irritable bowel syndrome, with lactose intolerance (IBS). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD David Ganz, Associate Counsel INTRODUCTION The Veteran had active military service from September 1979 to May 1990. This matter comes to the Board of Veterans' Appeals (Board) from a March 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which in pertinent part, granted service connection for IBS, assigning a 10 percent rating, effective October 6, 2003. Additional evidence was submitted to the Board in September 2008, accompanied by a written waiver of initial RO consideration. See 38 C.F.R. § 20.1304(c); see also Disabled American Veterans (DAV) v. Sec'y of Veteran's Affairs, 327 F.3d 1339, 1346 (Fed. Cir. 2003). In filing his VA Form 9 appeal to the Board, the Veteran contends that he never received a statement of the case (SOC), although the record shows the RO mailed him an SOC in July 2005. There is a presumption of regularity under which it is presumed that government officials "have properly discharged their official duties." Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994) (VA need only mail notice to the last address of record for the presumption to attach). Notwithstanding this, the RO has accepted that the Veteran filed a substantive appeal of the current issue in a timely manner and the Veteran's claim was certified to the Board in January 2006. When this matter was initially before the Board in December 2008, the Board denied the claim of entitlement to an initial evaluation in excess of 10 percent for IBS. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court) which, in a November 18, 2009 Order, granted the parties' Joint Motion for remand, vacating that part of the Board's December 2008 decision that denied entitlement to an initial evaluation in excess of 10 percent for IBS and remanding the case for compliance with the terms of the Joint Motion. FINDING OF FACT The Veteran's IBS is not manifested by diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 10 percent for the service-connected irritable bowel syndrome, with lactose intolerance (IBS), have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 4.114, Diagnostic Code (DC) 7319 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). VA must request that the claimant provide any evidence in the claimant's possession that pertains to a claim. 38 C.F.R. § 3.159. The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice regarding the initial service connection claim by letter dated in October 2003. The notification substantially complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. The October 2003 notification did not advise the Veteran of the laws regarding degrees of disability or effective dates for any grant of service connection. However, after the Veteran disagreed with the effective date assigned, the RO issued an SOC in July 2005, informing the Veteran regarding the laws and regulations governing degrees of disability for IBS and the assignment of effective dates. The Veteran has not alleged any prejudice as a result of the subsequent notice provided by the SOC, nor has any been shown. Furthermore, the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, section 5103(a) notice has served its purpose. Dingess v. Nicholson, 19 Vet. App. at 490. As the Veteran was granted service connection and assigned an evaluation and effective date, the Secretary had no obligation to provide further notice under the statute. Id. As such, any defect with respect to the content of the notice was non-prejudicial. Additionally, in a November 2008 written statement the Veteran's representative provided argument regarding those issues. In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 U.S. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). VA has obtained service treatment records (STRs), assisted the Veteran in obtaining evidence, and afforded the Veteran medical examinations regarding the existence and severity of his IBS disability. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claim file; and the Veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Analysis In the November 2009 Joint Motion for remand, the parties agreed that the Board's December 2008 decision should be vacated and remanded so that the Board can address the credibility of the Veteran's lay statements concerning his reported IBS symptoms. The RO granted service connection for IBS in March 2004, assigning a 10 percent rating with an effective date of October 6, 2003. The Veteran contends that he is entitled to a higher rating for his IBS disability because he has constant abdominal pain and bloating. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. During an appeal of a disability rating, either from an initial rating assigned on granting of service connection, or on appeal of a subsequent denial of an increased rating, it may be found that are varying and distinct levels of disability impairment severity during an appeal. So, staged ratings (different disability ratings during various time periods) are appropriate 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). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). IBS is rated under 38 C.F.R. §4.114, DC 7319. Under DC 7319 a non-compensable rating is warranted for mild irritable colon syndrome, spastic colitis, mucous colitis, etc., manifested by disturbances of bowel function with occasional episodes of abdominal distress. A 10 percent rating is warranted for moderate irritable colon syndrome manifested by frequent episodes of bowel disturbance with abdominal distress. A 30 percent rating requires 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. A VA examination was conducted in January 2004. The examiner noted that he reviewed the Veteran's claim file. The Veteran reported that during service he was diagnosed with irritable bowel syndrome and lactose intolerance, and since that time he has been on a special diet, eliminating milk products and some sugars. He also reported that since 1991 he has constant discomfort in his upper abdomen every day. The Veteran reported that he has bloating that goes down and then returns in the morning, but that he never has nausea or vomiting with this problem. It was noted that he does not have intermittent diarrhea and constipation. He does complain of a great deal of flatus. His treatment consists of Lactinex-type tablets, which he takes and gets some relief, however he does not take the Lactinex tablets on a daily basis. Physical examination revealed that the Veteran was well developed, and in no acute chronic distress at the moment, but that he does have upper abdominal distention and some slight upper abdominal tenderness to deep palpitation. A diagnosis of lactose intolerance should be considered the main diagnosis, and the Veteran does have a typical history of irritable bowel syndrome, was given. December 2004 VA treatment records note that the Veteran's chief complaint was constipation and loose stools, and that he has had this problem for years. His main reason for the appointment was to document his complaints. An assessment of irritable bowel syndrome was given. A VA examination was conducted in April 2005, and the examiner noted that he reviewed the Veteran's records. The Veteran reported that some time he still has abdominal cramping, particularly if he strays off of his diet or if he inadvertently takes certain fluids that later cause abdominal cramping. It is somewhat a trial and error basis to properly adjust his diet. He admits to some nausea, rarely vomiting, and a considerable amount of constipation and occasionally diarrhea. He described the constipation on literally a daily basis and that it is apparently episodic; sometimes he has intermittent diarrhea from this. Physical examination revealed that the Veteran is cooperative and a rather good historian. Examination reveals a patient that does not appear acutely ill, has no evidence of anemia, and that his abdomen is flat, generally non-tender, and has no organmegaly. Auscultation of the abdomen reveals normal peristaltic sounds. Diagnoses of lactose intolerance and irritable bowel syndromes were given. July 2005 VA treatment records note that the Veteran presented for an elective outpatient colonoscopy, and the indicationes for the procedure were diarrhea, constipation, and hematochezia. It was noted that there were no complications associated with the procedure. July 2005 VA treatment records note that the Veteran had a colonoscopy and has been passing dark red blood since then. No abdominal pain. He continues to have constipation alternating with diarrhea. July 8, 2005 VA treatment records note that the Veteran complained of blood in his stool since Sunday, July 7, 2005. The Veteran denied pain when he has a stool. He had frequent stools beginning on Sunday. He does have some general stomach bloating, which is present with his IBS in the past and some mild low back pain. An August 2005 VA gastroenterology procedure report indicates that the Veteran's chief complaint was alternating constipation with diarrhea, and that he reported that on a daily basis he has constipation in the morning, followed by bloating with abdominal cramping and diarrhea in the evening. The Veteran has taken medication in the past, which has helped some with the abdominal pain. A review of symptoms was positive for bloating, abdominal pain, diarrhea, and constipation. An impression of a polyp in the ascending colon was removed was given. August 2008 VA treatment records note that the Veteran has a history of irritable bowel syndrome for many years and that his primary complaint was of bloating accompanied by abdominal distension, intermittent abdominal pain, constipation with straining, and occasional hematochezia. An assessment of history of irritable bowel syndrome, constipation predominant, and overall diet poor in fruits and vegetables, was given. Under DC 7319 ratings in excess of 10 percent for IBS are not assignable unless the disability manifests diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. See 38 C.F.R. § 4.114. The Veteran contends that he suffers from constant and/or daily abdominal pain, bloating, and constipation. The Veteran is competent to state whether he suffers from symptoms such as pain, bloating, or constipation. See Charles v. Principi, 16 Vet. App. 370 (2002). The January 2005 VA examination report, however notes that the Veteran was not at that time in acute or chronic distress. The April 2005 VA examination report notes that the Veteran has abdominal cramping when he strays off his diet, which suggests that cramping is not more or less constant. It was noted that the Veteran has considerable constipation and diarrhea, but it was not noted that these symptoms cause near-constant distress or pain. The July 2005 VA treatment records note that the Veteran did not have abdominal pain. The July 8, 2005 VA treatment record notes that the Veteran denied pain when he has a stool, which indicates that the Veteran does have constant pain. The August 2005 VA treatment record indicates that the Veteran takes medication, which has helped with the abdominal pain. Finally, the August 2008 VA treatment report notes that although the Veteran has constipation and bloating, he has only intermittent abdominal pain. Therefore, because numerous VA treatment records indicate that the Veteran does not have more or less constant abdominal distress, but rather that he has occasional pain which is helped by medication, the Board finds that his statements that he has constant abdominal pain and or other types distress are not supported by the competent medical evidence of record. The Board does recognize that the January 2004 VA examination report notes that the Veteran reported constant discomfort in his upper abdomen. However, on physical examination it was noted that he was then in no acute chronic distress. Similarly, the August 2005 VA gastroenterology report indicates that the Veteran complained of daily cramping. The Board finds that the medical reports of record that contain the Veteran's self-reported complaints of constant discomfort or pain to have limited probative value, as they are merely a recitation of the Veteran's self-reported and unsubstantiated medical history, which has been found to be inconsistent with the medical evidence of record. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (a bare transcription of lay history is not transformed into medical evidence simply because it was transcribed by a medical professional). Therefore, the competent and credible evidence of record does not indicate that the Veteran has more or less constant abdominal distress and a rating in excess of 10 percent for IBS is not warranted under DC 7319. 38 C.F.R. § 4.114. The Veteran may genuinely believes that the severity of his IBS disability warrants a higher rating. However, as a lay person, lacking in medical training and expertise, the Veteran cannot provide a competent opinion on a matter as complex as the extent of his IBS disability, and his views are of no probative value. And, even if his opinion was entitled to be accorded some probative value, it is far outweighed by the medical evidence of record and VA examination report, which shows that the criteria for a disability rating higher than 10 percent have not been met. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Gilbert, 1 Vet. App. 49; 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.114 DC 7319. Competent medical experts make these opinions and the Board is not free to substitute its own judgment for that of such experts. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). At no time since the pendency of the Veteran's claim has his IBS disability met or nearly approximated the criteria for a higher rating, and staged ratings are not for application. See Hart, 21 Vet. App. 505. Where the schedular rating is found to be inadequate, the claim may be referred to the VA Director of Compensation and Pension Service for an extraschedular rating. 38 C.F.R. § 3.321. The determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular rating for that service-connected disability is inadequate. There must be a comparison between the level of severity and symptomatology of the service- connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). While the Veteran has reported interference with employment, there is no evidence of record, other than his very general statements, regarding such interference. Moreover, interference with employment was not noted in any of his VA examinations. Comparing the level and symptomatology of the Veteran's IBS disability to the rating schedule, the degree of disability and symptomatology, such as constipation and diarrhea, are contemplated by the rating schedule, particularly 38 C.F.R. § 4.114 DC 7319, the assigned schedular rating is, therefore, adequate, and no referral for an extraschedular rating is required. ORDER Entitlement to an initial rating in excess of 10 percent for irritable bowel syndrome, with lactose intolerance (IBS), is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs