Citation Nr: 1015239 Decision Date: 04/27/10 Archive Date: 05/06/10 DOCKET NO. 07-05 874 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial disability evaluation in excess of 10 percent for irritable bowel syndrome (IBS). 2. Entitlement to an initial disability evaluation in excess of 10 percent for urethra stricture. 3. Entitlement to an initial compensable disability evaluation for emphysema/bronchitis prior to February 21, 2007. 4. Entitlement to an increased evaluation for emphysema/bronchitis, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran had active service from June 1980 to August 1980, May 1983 to April 1987, and from August 1989 to December 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Waco, Texas, which granted service connection for IBS and urethra stricture and assigned 10 percent disability evaluations for each and granted service connection for emphysema/bronchitis and assigned a noncompensable disability evaluation. In an April 2007 rating determination, the RO increased the Veteran's disability evaluation for the service-connected emphysema/bronchitis from noncompensable to 10 percent and assigned an effective date of February 21, 2007. As a result of the RO's actions, the Board has listed the issues as such on the title page of this decision. The Veteran appeared at a Travel Board hearing before the undersigned Acting Veterans Law Judge in January 2010. A transcript of the hearing is of record. The issues of higher evaluations for urethra stricture and emphysema/bronchitis are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. The Veteran will be notified if further action is required on his part. FINDING OF FACT Throughout the rating period on appeal, the Veteran's service-connected IBS has been manifested by complaints of diarrhea with more or less constant abdominal pain. CONCLUSION OF LAW The criteria for an initial evaluation of 30 percent for IBS throughout the rating period on appeal have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.7, 4.114, Diagnostic Code 7319 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 has been amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). This appeal arises from disagreement with the initial evaluation following the grant of service connection. The courts have held that once service connection is granted the claim is substantiated, additional VCAA notice is not required; and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). There has been compliance with the assistance requirements of the VCAA. All available service medical, VA, and private treatment records have been obtained. No other relevant records have been identified. The Veteran was afforded several VA examinations. The reports of these examinations reflect that the examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate physical examinations and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The Board therefore concludes that the examinations are adequate for rating purposes. See 38 C.F.R. § 4.2 (2009). Based upon the foregoing, no further action is necessary to assist the Veteran in substantiating the claim. IBS Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 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. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's digestive disability is currently rated as 10 percent disabling under Diagnostic Code 7319. Diagnostic Code 7319 provides ratings for irritable colon syndrome (spastic colitis, mucous colitis, etc.). Moderate irritable colon syndrome, with frequent episodes of bowel disturbance with abdominal distress, is rated 10 percent disabling. Severe irritable colon syndrome, with diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress, is rated 30 percent disabling. 38 C.F.R. § 4.114, Diagnostic Code 7319. Ratings under Diagnostic Codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348, inclusive, will not be combined with each other. A single rating will be assigned under the diagnostic code that reflects the predominant disability picture, with elevation to the next higher rating where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114. Under Diagnostic Code 7305, a moderately severe duodenal ulcer, with less than severe disability, but with impairment of health manifested by anemia and weight loss; or recurrent incapacitating episodes averaging 10 days or more in duration at least four or more times a year is evaluated as 40 percent disabling. Under Diagnostic Code 7346, for a hiatal hernia, a 60 percent evaluation requires symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia or other symptom combinations productive of severe impairment of health. In conjunction with his request for service connection for IBS, the Veteran was afforded a VA examination in August 2004. At the time of the examination, the Veteran reported having four or five bowel movements early in the morning, one or two at lunchtime, and anywhere from two to six in the evening. He noted that he usually did not have any trouble during the sleeping hours but stated that when he had an attack he would double up in pain, have spasms, and lose fecal control. The Veteran reported that he had been able to maintain his weight. He used 10-12 Imodium AD per week. The Veteran indicated that he could not identify a specific cause, except when he ate Chinese food. A diagnosis of IBS was rendered at that time. Following the RO's grant of service connection and assignment of a 10 percent disability evaluation, the Veteran's wife submitted an October 2005 letter in support of the Veteran's claim indicating that his IBS was the most aggravating disorder for her. She noted that she provided the Veteran with gentle food but that the IBS would attack without warning. She stated that he would go days with extreme pain and bouts of diarrhea, frequently resulting in sleepless nights and embarrassing situations. In his October 2005 notice of disagreement, the Veteran indicated that his IBS had been a problem for over 20 years. He noted that he had reported in the military that he frequently experienced abdominal distress. The Veteran stated that while he experienced occasional constipation, his bowel movements were all mostly diarrhea. He indicated that he was now being awakened two to four times per night and would have bowel movements many times during the day. The Veteran reported that he would awake at night with severe abdominal pain and spend a good amount of time in the bathroom each night. He stated that his bowels were in a constant state of aggravation and noted that the problem was a little more than embarrassing. He further indicated that this played havoc with his getting a good night's sleep. In a February 2007 VA outpatient treatment record, the Veteran was noted to have 15-30 liquid stools per day. He did have fecal incontinence. The Veteran complained of nausea but had no vomiting. He further indicated that he had had no weight loss. At the time of an April 2007 VA outpatient visit, the Veteran reported having 15-20 loose stools per day, which were preceded by colicky pain. He also had occasional constipation. At the time of an April 2007 VA examination, the Veteran indicated that he had had intermittent constipation and diarrhea for the past 20 years. He noted that he would 15 to 20 watery stools, followed by constipation in the morning described as difficult to pass stool associated with intermittent rectal bleeding, followed by loose watery stools throughout the day. A diagnosis of IBS without evidence of rectal incontinence or acute diarrhea was rendered. At the time of his January 2010 hearing, the Veteran stated that most of the time his abdominal area and bowels were in distress. He testified that the more he had to go to the bathroom the worse the pain would become. He noted that it would become so painful he would just have to go to the bathroom. The Veteran reported going to the bathroom five or six times during the day. He noted that while he had occasional constipation, it was mostly diarrhea. He stated that he would have anywhere between 10 and 20 bowel movements per day and that he would usually go five or six times in the morning. The Veteran also testified that it would wake him up three or four times per night. He stated that he had symptoms all the time. The Veteran took Imodium AD. He indicated that he did not use pads and had no leakage. The Veteran stated that he always had to be really close to a bathroom. The Veteran indicated that he had not missed work as he worked from home. He reported that the bathroom was about 20 feet from his office. The Veteran stated that it affected his quality of life as he always had to be near the bathroom. The Board finds that throughout the rating period on appeal, as reflected in the evidence noted above, the Veteran's digestive disability has been manifested by consistent complaints (and findings) of diarrhea, with more or less constant abdominal distress, thus at least closely approximating a 30 percent rating under Diagnostic Code 7319. The Veteran is currently in receipt of the highest rating under Diagnostic Code 7319. As such, the Board will review other potentially applicable regulations. As for a 40 percent evaluation under Diagnostic Code 7305, or a 60 percent evaluation under Diagnostic Code 7346, the record is devoid of findings showing anemia, hematemesis, melena, or recurrent incapacitating episodes averaging 10 days or more in duration at least four or more times a year. Further, the record does not reveal weight loss. The Veteran was shown to have been at a consistent weight throughout the appeal period. In conclusion, the evidence of record supports an initial rating of 30 percent for the Veteran's IBS for the entire portion of the rating period on appeal. As the preponderance of the evidence is against a higher initial rating, the benefit of the doubt rule is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Extraschedular Consideration In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service- connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1). (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step--a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. The Veteran's IBS is manifested by diarrhea up to 20 times per day and abdominal distress. These manifestations are contemplated by the rating schedule. The most recent VA examiner did not indicate that the disability caused marked interference with employment. Moreover, the Veteran has reported that he has not missed a day of work as a result of his IBS. The disability has also not required any recent periods of hospitalization. No other exceptional factors have been reported. As such, the criteria for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996). ORDER An initial rating of 30 percent for IBS throughout the rating period on appeal is granted, subject to controlling regulations applicable to the payment of monetary benefits. REMAND As it relates to the Veteran's claim for a higher initial evaluation for urethra stricture, the Board notes that at the time of his January 2010 hearing, the Veteran indicated that the symptomatology associated with his service-connected urethra stricture had increased in severity since the last comprehensive VA examination performed in April 2007. VA is obliged to afford a Veteran a contemporaneous examination where there is evidence of an increase in the severity of the disability. VAOPGCPREC 11-95 (1995). The Veteran is competent to provide an opinion that his disability has worsened. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). The Veteran also testified that the symptomatology associated with his service-connected emphysema/bronchitis had increased in severity since the time of his last comprehensive VA examination performed in April 2007. As noted above, the Veteran is competent to provide an opinion that the symptoms associated with his service-connected respiratory condition have increased in severity. As such, an additional VA examination should be performed to determine the current severity of the Veteran's service-connected emphysema/bronchitis. The Board also notes that the Veteran testified as to continuing to receive treatment for his claimed disorders at the Temple VAMC. While the Board notes that the Veteran submitted additional VA treatment records from the Temple VAMC following the hearing, as this matter is in remand status, any additional treatment records should be obtained from January 2010 to the present. VA is deemed to have constructive knowledge of documents which are generated by VA agents or employees. Bell v. Derwinski, 2 Vet. App. 611,612- 13 (1992). If those documents predate a Board decision on appeal, are within VA's control, and could reasonably be expected to be part of the record, then "such documents are, in contemplation of law, before the Secretary and the Board and should be included in the record." Id. at 613. If such material could be determinative of the claim, a remand for readjudication is in order. Dunn v. West, 11 Vet. App. 462, 466 (1998). Accordingly, the case is REMANDED for the following action: 1. Obtain copies of all records of the Veteran's treatment from the Temple, Texas VAMC from January 2010 to the present. 2. Schedule the Veteran for a VA examination to determine the extent and severity of his service-connected emphysema/bronchitis. The claims folder should be made available to the examiner. All necessary tests and studies are to be performed, including pulmonary function tests, and all findings are to be reported in detail. It is essential that the pulmonary function study contains the full range of results necessary to rate the disability under the diagnostic criteria (FEV-1, FVC, DLCO (SB), maximum exercise capacity, maximum oxygen consumption with cardiorespiratory limitation). The presence or absence of right ventricular hypertrophy, cor pulmonale, pulmonary hypertension, or outpatient oxygen therapy should also be documented. 3. Schedule the Veteran for a VA examination to determine the extent and severity of his service-connected urethra stricture. The claims folder should be made available to the examiner. All necessary tests and studies are to be performed and all findings are to be reported in detail. The examiner is requested to comment on the following: urinary retention requiring intermittent or continuous catheterization; daytime voiding intervals; nocturia intervals; and the wearing of absorbent materials, if necessary, and the amount of times they must be changed on a daily basis. 4. To help avoid future remand, the RO must ensure the required actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, corrective action should be undertaken before the claims file is returned to the Board. See Stegall v. West, 11 Vet. App. 268 (1998). 5. If any claim on appeal is not fully granted, issue a supplemental statement of the case before returning the case to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ S. BUSH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs