Citation Nr: 1111112 Decision Date: 03/21/11 Archive Date: 04/05/11 DOCKET NO. 09-32 481 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased disability rating for Crohn's disease, currently evaluated as 30 percent disabling. 2. Entitlement to a compensable rating for De Quervain's tenosynovitis, left wrist. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD Michael Wilson, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1993 to January 1999. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the benefits sought on appeal. The United States Court of Appeals for Veterans Claims (Court) has recently held that a request for total disability based upon individual unemployability, whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of a claim for increased compensation. There must, however, be cogent evidence of unemployability in the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009), citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). In the instant case, the holding of Rice is inapplicable since the evidence of record contains no indication that the Veteran has been rendered unemployable by her service-connected disabilities. Finally, while the record reflects that the RO reviewed the Veteran's virtual file in connection with its preparation of the July 2009 statement of the case, the Board's review of that file does not reveal the existence of any relevant documents that are not already of record. The issue of entitlement to a compensable rating for De Quervain's tenosynovitis, left wrist, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. The Veteran will be notified if any further action is required on her part. FINDING OF FACT The Veteran's Crohn's disease is manifested by numerous attacks per year and only fair health during periods of remission. CONCLUSION OF LAW The criteria for an evaluation of 60 percent, but no higher, for Crohn's disease have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.114, Diagnostic Code 7323 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2010); 38 C.F.R. § 3.159(b) (2010); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b) (2010). This notice must be provided prior to an initial unfavorable decision on the claim by the Agency of Original Jurisdiction. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of her claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Prinicipi, 353 F.3d 1369 (Fed. Cir. 2004). An RO letter dated in October 2008 informed the Veteran of all of the elements required by 38 C.F.R. § 3.159(b), as stated above. Regarding the duty to assist, the RO has obtained the Veteran's service and VA treatment records, and has provided her with a VA examination. The Veteran has not indicated that there are any outstanding treatment records she wished VA to obtain. There is no indication from the claims file that the Veteran has sought private treatment for her Crohn's disease and accordingly, no such records could be obtained. The Board notes that the Veteran's most recent VA examination was in October 2008; however, the Board finds that a remand for a new VA examination is not necessary in this case. In this regard, the Board notes that the Veteran has not reported that her Crohn's disease has worsened since her most recent examination. As such, the Board finds that no prejudice results to the Veteran in adjudicating this claim on the evidence of record, as this evidence adequately addresses the pertinent rating criteria and is sufficient for the Board to consider the functional effects of her service-connected disability. Accordingly, the duty to assist has been satisfied and there is no reasonable possibility that any further assistance to the Veteran by VA would be capable of substantiating this claim. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating the issue on appeal. II. Increased Rating for Crohn's Disease The Veteran was originally granted service connection for her Crohn's disease in a May 1999 rating decision and was assigned a 10 percent rating effective January 9, 1999. Subsequently, in an August 1999 rating decision, the RO increased the Veteran's Crohn's disease evaluation to 30 percent, effective May 15, 1999, the date of claim. In September 2008, the Veteran submitted the instant claim for an increased rating for her Crohn's disease, reporting that this disability is more disabling than reflected in her current disability rating. A. Governing Law and Regulations Disability ratings are based on the average impairment of earning capacity resulting from a disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2010). An evaluation of the level of disability present includes consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (2010). Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7 (2010). Otherwise, the lower rating will be assigned. Id. Although the Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). A recent decision of the Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. However, as discussed below, because the level of impairment associated with the Veteran's service-connected Crohn's disease has been relatively stable throughout the relevant time frame on appeal, the application of staged ratings is inapplicable in this case. The Veteran bears the burden of presenting and supporting her claim for benefits. 38 U.S.C.A. § 5107(a) (West 2002). In its evaluation, the Board considers all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b) (West 2002). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. Id. Under the anti-pyramiding provision found at 38 C.F.R. § 4.14 (2010), the evaluation of the "same disability" or the "same manifestation" under various diagnoses is to be avoided. The Court held, in Esteban v. Brown, 6 Vet. App. 259 (1994), that for purposes of determining whether the Veteran is entitled to separate ratings for different problems or residuals of an injury, such that separate evaluations do not violate the prohibition against pyramiding, the critical element is that none of the symptomatology for any one of the conditions is duplicative of, or overlapping with, the symptomatology of the other conditions. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and the demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625 (1992). The Board notes that the Schedule for Rating Disabilities does not include a disability specifically for Crohn's disease. In this case, Diagnostic Code 7323 (ulcerative colitis) is deemed by the Board to be the most appropriate, primarily because, while it does not specifically address Crohn's disease, the anatomical localization and symptomatology are closely analogous. See 38 C.F.R. § 4.20 (2010). The Veteran has not argued that the currently assigned Diagnostic Code is inappropriate. Accordingly, the Veteran's disability will continue to be rated under Diagnostic Code 7323. Pursuant to the rating schedule, ulcerative colitis is evaluated as follows: pronounced, resulting in marked malnutrition, anemia, and general debility, or with serious complication as liver abscess (100 percent); severe, with numerous attacks a year and malnutrition, the health only fair during remissions (60 percent); moderately severe, with frequent exacerbations (30 percent); and moderate, with infrequent exacerbations (10 percent). See 38 C.F.R. § 4.114 (2010), Diagnostic Code 7323. B. Analysis The Veteran is currently assigned a 30 percent disability rating for Crohn's disease. The evidence of record reveals that the Veteran receives regular treatment for her Crohn's disease at the Orlando VA outpatient clinic. In a January 2008 gastrointestinal (GI) follow-up visit, the Veteran stated that her bowel function was much better, and that she was having two to three solid bowel movements per day and no longer having diarrhea or lower abdominal cramping. The Veteran did complain of fatigue, and the VA physician noted that the Veteran's Crohn's disease with pancolitis was improving on a multidrug prescription. In an April 2008 GI follow-up, however, the VA physician noted that the Veteran had been having loose stools intermittently, noted as more often than not, over the past 6 months. The physician noted that she had erythema nodosum and multiple joint inflammation associated with her Crohn's disease. He also noted that she had good energy and no fever. In a May 2008 primary care visit, the VA physician noted that the Veteran had been having a difficult time lately with her Crohn's disease, specifically with multijoint arthritis in her right ankle, wrists, and shoulder, and intermittent diarrhea. In a July 2008 GI follow-up visit, the Veteran was noted as having Crohn's disease and synovitis/nondestructive arthritis for which she has been maintained on prescriptions. The VA physician noted that she had some improvement in ankle swelling, but that she complained of some joint pain mostly in her wrists. She had an elevated erythrocyte sedimentation rate, but was found negative for serologies. The VA physician noted that the Veteran had been having numbness in her upper extremities for about one month. Specifically, she had right-sided numbness from her shoulder to her finger tips, and left-sided numbness from her elbow to her finger tips. He also noted that neither symptom was related to motion. In a September 2008 GI follow-up visit, the VA physician noted that the Veteran was reportedly having diarrhea, described as semi-solid, three to four times per day. He noted that she had no rectal bleeding, but that she had occasional abdominal pain. He also noted that she had intermittent right ankle swelling and that she was not showing erythema nodosum. He noted that she was having chronic fatigue. The nursing outpatient note for this visit indicates that the Veteran reported that she had been doing "so-so." In an October 2008 GI follow-up visit, the VA physician noted that the Veteran had complained of increased bowel movements of as many as six to eight times per day, accompanied with lower abdominal "grumbling" and abdominal pain. She had a blood streak with wiping but no frank rectal bleeding otherwise. She also had increased ankle pain, more on the right side than the left. The physician noted that the Veteran had soft mild midepigastric tenderness, but no masses and no ascites. At the time of a November 2008 Neurology visit, the Veteran was noted as having loose, frequent bowl movements over the two previous weeks. The VA physician noted that this was a possible flare-up of her Crohn's disease. In a December 2008 GI follow-up visit, the VA physician noted that the Veteran had a recent flare-up of her Crohn's disease, present initially with lower abdominal pain and followed by rectal bleeding, which he indicated as being the usual symptoms of her flare-ups. He noted that thereafter, the Veteran developed multiple leg subcutaneous nodules/erythema nodosum and developed episcleritis. He noted that her appetite had decreased and that she was having loose stools at the rate of as many as eight times a day. He noted, however, that the bleeding had stopped following in an increase in her prescription for Azathioprine. He further noted on examining her abdomen that she had mild right-sided mid-abdominal tenderness. He also noted that she had been gaining weight. In a February 2009 GI follow-up visit, the Veteran was noted as having some minor issues with blood streaked stools, likely caused by hemorrhoids. In a March 2009 GI follow-up visit, the VA physician noted that the Veteran had not been having rectal bleeding but that she was having some gaseousness. She was having two to three semisolid stools per day. He also noted that her fatigue was persistent. Her abdomen was noted as being soft, nontender, with no masses. At the time of a June 2009 gynecological visit, the VA physician noted that the Veteran was having a flare-up of her Crohn's disease. She also noted that the Veteran had been gaining weight, and losing hair from the disease and medications. It was also noted that the Veteran is morbidly obese. The Veteran was afforded a VA intestine examination in October 2008. In reviewing the Veteran's medical history, the VA examiner noted that the Veteran's Crohn's disease had become progressively worse since its onset, with a history of nausea several times a week, a history of persistent diarrhea one to four times daily, a history of fistula, and a history of severe intestinal pain in the epigastric area, described as "colicky and crampy," occurring several times a week and lasting for minutes. The examiner further noted that there is no history of ulcerative colitis and no history of other symptoms. She also noted that there was no ostomy present. The examiner noted that the Veteran stated that her erythrocyte sedimentation rate had been climbing, that she still has loose stools, that she goes to the bathroom four times daily and that she has myalgia, constant fatigue, and ankle swelling. Upon examining the Veteran, the examiner noted that her overall general health was fair. She noted that there were no signs of significant weight loss or malnutrition, no signs of anemia, that no fistula was present, no abdominal mass was present, and that there was no abdominal tenderness. The examiner noted that the Veteran has been employed full-time in her current position for two to five year, and that over the last twelve month period she had lost about one week's worth of time from work. She noted that the cause of the Veteran's lost time form work over the last twelve months was her stomach pain, diarrhea, and ankle swelling. She also noted that the Veteran's Crohn's disease has a significant occupational effect on the Veteran, due to weakness or fatigue, decreased strength in the lower extremity, fecal incontinence, and pain. The resulting occupational effect is increased absenteeism. The VA examiner concluded that the Veteran's present Crohn's disease symptoms are moderate to severe, and, seemingly in contradiction to her previous notation, that in her opinion, the Veteran's symptoms are not increasing. The Veteran submitted a statement from her coworker, C.M., dated in October 2008, where her coworker describes the pain and suffering that the Veteran has been enduring over the past two years. She describes the Veteran's condition as taking a noticeable turn for the worse over the last year. She notes that the Veteran has difficulty walking and typing on some days due to swollen ankles and pains in her hands. The Veteran has complained to C.M. about her joints locking and numbness in her arms. She notes that while the Veteran's productivity has not diminished, the distress in her face and her demeanor, indicate that she is in tremendous pain. She and other coworkers have had to assist the Veteran in making trips to the copier and mailroom in order to help keep the Veteran off of her feet as much as possible. After evaluating the evidence, the Board finds that the current status of the Veteran's Crohn's disease more closely approximates the criteria required for a 60 percent evaluation. The evidence reflects that the Veteran has had numerous attacks of her Crohn's disease each year. Though her disease is not resulting in marked malnutrition, her health has been consistently described as only "so-so" or fair. Further, the VA examiner noted that the Veteran's Crohn's disease was moderate to severe, and that since its onset, it has progressively worsened. There are significant indications in the record that the Veteran is experiencing severe Crohn's disease symptoms. She has been attending GI follow-up visits nearly monthly, and consistently complains of loose and bloody stools, abdominal pain and cramping. She has additionally been noted to consistently have painful and swollen joints in association with her Crohn's disease. Her Crohn's disease appears to be having an increasingly negative effect on her employment duties. Accordingly, the Board finds that the Veteran suffers from severe Crohn's disease with numerous attacks a year and only fair health during remissions, more closely approximating the criteria required for the 60 percent rating. The Board has determined that the Veteran does not meet the criteria for a 100 percent rating because the Veteran s Crohn's disease is not pronounced and does not result in marked malnutrition, anemia, or general debility. Additionally, she has not been shown to have any serious complications, such as a liver abscess, associated with her Crohn's disease. In determining whether a higher rating is warranted for a service-connected disability, VA must determine whether the evidence supports the Veteran's claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C.A. § 5107(a) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the evidence supports the Veteran's claims that she is entitled to an increased rating for her service-connected Crohn's disease. III. Extraschedular Consideration The rating schedule represents as far as is practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. See 38 C.F.R. § 3.321(a), (b) (2010). To afford justice in exceptional situations, an extraschedular rating can be provided. See 38 C.F.R. § 3.321(b) (2010). In a recent case, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran'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." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto 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 C&P Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The symptoms associated with the Veteran's Crohn's disease (i.e., consistent loose bowel movements, rectal bleeding, abdominal pain, and fair health) are not shown to cause any impairment that is not already contemplated by the rating criteria. The 60 percent rating assigned under DC 7323 contemplates numerous attacks a year and only fair health during remissions, and the Board finds that these rating criteria reasonably describe the Veteran's disability. For these reasons, referral for consideration of an extraschedular rating is not warranted for this claim. ORDER Entitlement to a 60 percent disability rating, but no higher, for Crohn's disease is granted, subject to the laws and regulations governing the award of monetary benefits. REMAND The Veteran's remaining claim is that of entitlement to a compensable disability rating for her service-connected De Quervain's tenosynovitis of the left wrist. Unfortunately, a remand is required on this issue. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that she is afforded every possible consideration. The Veteran was seen for a VA neurology consultation in September 2008, at which time she reported to the VA physician that she continued to experience numbness and tingling in her arms. The VA physician additionally noted that the Veteran was seen for an electromyography by a private physician, Dr. Fernando Gonzales-Portillo, where her nerve conduction study (NCS) was normal. Dr. Gonzales-Portillo apparently felt that the Veteran had carpal tunnel syndrome (CTS) but this was not proven by the NCS. The Veteran was seen for another VA neurology consultation in November 2008. The VA physician noted that the Veteran complained of bilateral upper extremity tingling and numbness for the past four months. In her left upper extremity, this extended from her elbow to her hand. The VA physician additionally noted that the Veteran had been seen by a private neurologist who conducted testing and provided an opinion on the Veteran's condition, that she likely has CTS, as reported previously. As a result of the above, the record reflects that the Veteran may have a neurological manifestation of her service-connected disability of the left wrist. However, it is unclear whether the Veteran's neurological manifestations are in fact related to her service-connected left wrist disability. Accordingly, the Board finds that a VA neurological examination must be performed in order to determine if the Veteran's symptoms of numbness and tingling sensations are associated with her service-connected disability. Additionally, potentially relevant private medical records may not have been obtained by the RO. Specifically, VA physicians have indicated, as noted previously, that the Veteran has received treatment from a private neurologist, Dr. Gonzales-Portillo. On remand, the RO should make arrangements to obtain the Veteran's treatment records from Dr. Gonzales-Portillo. See Murphy v. Derwinski, 1 Vet. App. 78 (1990); Littke v. Derwinski, 1 Vet. App. 90 (1990). As this case is being remanded for the foregoing reasons, any recent VA and any other private treatment records should also be obtained on remand. In this regard, the Board observes that the Veteran has received regular treatment from VA and private neurologists and that records of her care, dated since May 2009, have not been associated with the claims file. Under the law, VA must obtain these records. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2010); See also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain a complete copy of any recent VA treatment records dated since May 2009, and provide a release form to the Veteran in order to obtain any private medical records dated since September 2007, to include the medical record from Dr. Gonzales-Portillo. Any response received should be memorialized in the Veteran's claims file. 2. Thereafter, schedule the Veteran for a VA neurological examination with an appropriate expert. The claims file and a complete copy of this REMAND should be reviewed in association with the examination. The examination report should indicate that this has been accomplished. All necessary studies should be conducted. The examiner should address the symptoms of numbness and tingling that the Veteran has reported feeling in her left wrist and determine whether any diagnosis is associated with her service-connected disability of the left wrist. The examiner should then determine the nature and severity of any diagnosed condition that is associated with the Veteran's service-connected disability. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 3. Thereafter, review the claims file to ensure that the foregoing requested development has been completed. In particular, review the VA examination report to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 4. Finally, the claim should be readjudicated. If the claim remains denied, a Supplemental Statement of the Case should be provided to the Veteran and her representative, and after they have had an adequate opportunity to respond, this issue should be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See 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. 2010). ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs