Citation Nr: 1124435 Decision Date: 06/28/11 Archive Date: 07/06/11 DOCKET NO. 09-30 047 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial rating higher than 10 percent for chronic constipation. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C. P. Swick, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Air Force from August 1967 to April 1971. This appeal to the Board of Veterans' Appeals (Board) is from a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which granted service connection for chronic constipation and assigned an initial 10 percent rating. The Veteran appealed for a higher initial rating. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). In April 2009, the Board remanded the Veteran's claim for an increased rating for chronic constipation to RO via the Appeals Management Center (AMC) in Washington, DC. In March 2011, the Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge (VLJ), commonly referred to as a Travel Board hearing. A transcript of this hearing is associated with the claims folder. During the hearing the Veteran submitted additional evidence and waived his right to have the RO initially consider it. 38 C.F.R. §§ 20.800, 20.1304(c) (2010). In conjunction with his underlying service connection claim, the Veteran testified at a Travel Board hearing in October 2006 before another VLJ. In this situation the claim for service connection and the claim for a higher initial rating are separate issues and do not require both VLJs to decide the issue. 38 U.S.C.A. § 7102(a); see 38 C.F.R. § 19.2(b); 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. Therefore this appeal is not affected by the recent decision in Arneson v. Shinseki, No. 09-953, 2011 WL 1486552 (U.S. Vet. App. Apr. 20, 2011) regarding panel decisions. FINDING OF FACT The Veteran's gastrointestinal disorder is manifested by constant abdominal pain and alternating constipation and diarrhea. CONCLUSION OF LAW The criteria are met for the maximum 30 percent rating for the Veteran's chronic constipation, but no further consideration for an extraschedular rating is warranted. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1-4.14, 4.71a, Diagnostic Code 7319 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Duties to Notify and Assist As provided by the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist the claimant in obtaining; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). These VCAA notice requirements apply to all five elements of a service-connection claim, including the downstream disability rating and effective date elements. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary VCAA notice and then going back and readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In Shinseki v. Sanders, 129 S. Ct. 1696 (2009), the United States Supreme Court made clear that a reviewing court, in considering the rule of prejudicial error, is precluded from applying a mandatory presumption of prejudice rather than assessing whether, based on the facts of each case, the error was outcome determinative. In Sanders, the Supreme Court rejected the lower Federal Circuit's framework (see Sanders v. Nicholson, 487 F. 3d 881, 889 (Fed. Cir. 2007)) that all VA notice errors are presumptively prejudicial, in part, because it was "complex, rigid, and mandatory." Id., at 1704. The Supreme Court rejected the Federal Circuit's analysis because it imposed an unreasonable evidentiary burden on VA to rebut the presumption and because it required VA to demonstrate why the error was harmless, rather than requiring the appellant - as the pleading party, to show the error was harmful. Id., at 1705-06. The Supreme Court stated that it had "warned against courts' determining whether an error is harmless through the use of mandatory presumptions and rigid rules rather than case-specific application of judgment, based upon examination of the record." Id., at 1704-05. Thus, it is clear from the Supreme Court's analysis that, while the Veterans Court may conclude generally that a specific type of error is more likely to prejudice an appellant, the error must nonetheless be examined in the context of the facts of the particular case. Id. The Veterans Court initially held in Vazquez-Flores v. Peake, 22 Vet. App. 37, 48 (2008), that prejudicial deficiencies in the timing or content of a VCAA notice can be cured by showing the essential fairness of the adjudication will not be affected because: (1) the defect was cured by actual knowledge on the part of the claimant ("Actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrates an awareness of what was necessary to substantiate his or her claim.") (citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007)); (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. Sanders, 487 F. 3d at 889. Additionally, consideration also should be given to "whether the post-adjudicatory notice and opportunity to develop the case that is provided during the extensive administrative appellate proceedings leading to the final Board decision and final Agency adjudication of the claim ... served to render any pre-adjudicatory section 5103(a) notice error non-prejudicial." Vazquez-Flores, 22 Vet. App. at 46. See also Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding the Board had erred by relying on various post-decisional documents for concluding adequate 38 U.S.C.A. § 5103(a) notice had been provided to the appellant, the Veterans Court nonetheless determined the evidence established the Veteran was afforded a meaningful opportunity to participate effectively in the adjudication of his claims, and therefore found the error harmless). The Veterans Court further held in Vazquez-Flores v. Peake that, for an increased-compensation claim, 38 U.S.C. § 5103(a) requires, at a minimum, that VA notify the claimant that, to substantiate the claim, the medical or lay evidence must show a worsening or increase in severity of the disability and the effect that such worsening or increase has on the claimant's employment and daily life. On appeal, however, in Vazquez-Flores v. Shinseki, 2009 WL 2835434 (Fed.Cir.), the Federal Circuit vacated and remanded important aspects of the Veterans Court's holding in Vazquez-Flores, as well as a related case, Schultz v. Peake, No. 03-1235, 2008 WL 2129773, at 5 (Vet. App. Mar. 7, 2008). Significantly, the Federal Circuit concluded that "the notice described in 38 U.S.C. § 5103(a) need not be Veteran specific." Similarly, "while a Veteran's 'daily life' evidence might in some cases lead to evidence of impairment in earning capacity, the statutory scheme does not require such evidence for proper claim adjudication." Thus, the Federal Circuit held, "insofar as the notice described by the Veterans Court in Vazquez-Flores requires the VA to notify a Veteran of alternative diagnostic codes or potential "daily life" evidence, we vacate the judgments." Vazquez, 2009 WL 2835434, at 10. It since has been held that, after a notice error, such as failing to inform the appellant to submit evidence demonstrating the effect that a worsening of the disability has had on employment, is found in an increased-rating claim, the appellant's burden to show prejudice, at the Court (CAVC) level, does not shift to VA unless notice is not provided at all. See Vazquez-Flores v. Shinseki, No. 05-0355, 2010 WL 4146124 (Vet. App. Oct. 22, 2010). In this case, letters satisfying the notice requirements of 38 C.F.R. § 3.159(b)(1) were sent to the Veteran in July 2003, November 2003, September 2006, March 2007, and March 2008. These letter informed him of the evidence required to substantiate his underlying claim for service connection, and of his and VA's respective responsibilities in obtaining this supporting evidence. The September 2006 and subsequent letters complied with Dingess by apprising him of the downstream disability rating and effective date elements of his claim. This additional notice was not required, however. In cases, as here, where the claim arose in another context, namely, the Veteran trying to establish his underlying entitlement to service connection, and this claim since has been granted and he has appealed a downstream issue such as the initial disability rating assigned, the underlying claim has been more than substantiated - it has been proven, thereby rendering § 5103(a) notice no longer required because the initial intended purpose of the notice has been served. See Goodwin v. Peake, 22 Vet. App. 128 (2008). Thereafter, once a notice of disagreement (NOD) has been filed, for example contesting a downstream issue such as the initial rating assigned for the disability or effective date, the notice requirements of 38 U.S.C. §§ 5104 and 7105 regarding a rating decision and SOC control as to the further communications with the Veteran, including as to what evidence is necessary to establish a more favorable decision with respect to downstream elements of the claim. See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). And the Veteran received this required SOC in July 2009 citing the applicable statutes and regulations and discussing why a higher rating was not assigned. VA also fulfilled its duty to assist the Veteran by obtaining all relevant evidence in support of his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO obtained all relevant medical and other records that he identified. He also was examined for VA compensation purposes in May 2008. The Veteran also submitted private medical records from March 2011, which make sufficient findings to evaluate the Veteran's claim under the appropriate diagnostic code. The medical and other evidence in the file, especially the May 2008 examination report and March 2011 private treatment records, contain the information needed to assess the severity of his gastrointestinal disorder. So additional examination is not needed to fairly decide this claim. 38 C.F.R. §§ 3.327(a), 4.2. See also Caffrey v. Brown, 6 Vet. App. 377 (1994); Allday v. Brown, 7 Vet. App. 517, 526 (1995). See, too, Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (indicating a new examination is not required by the mere passage of time). II. Whether a higher initial rating is warranted for chronic constipation In June 2008, the RO granted service connection for chronic constipation and assigned an initial 10 percent rating retroactively effective to October 16, 2003. The Veteran appealed for a higher initial rating. For the reasons and bases discussed below, the Board finds that the 30 percent rating is more appropriate for his condition. Disability ratings are determined by applying VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 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 evaluation 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in the Veteran's favor. 38 C.F.R. § 4.3. While the Veteran's entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Board must consider the application of staged ratings. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). 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. The Veteran's condition has been rated under DC 7319 for irritable colon syndrome. DC 7319 provides for a noncompensable rating for mild irritable colon syndrome with disturbances of bowel function with occasional episodes of abdominal distress. A 10 percent evaluation is assigned if there is moderate irritable colon syndrome with frequent episodes of bowel disturbance with abdominal distress. A 30 percent evaluation is assigned if there is severe irritable colon syndrome with diarrhea, or alternating diarrhea and constipation and more or less constant abdominal distress. 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 § 4.14. 38 C.F.R. § 4.113 (2010). Separate ratings for Diagnostic Codes 7301 to 7329 and 7331, 7342, and 7345 to 7348 will not be combined with each other. A single evaluation will be assigned under the code that represents the predominant disability picture. But, the rating must be elevated to the next higher rating where "the severity of the overall disability warrants such elevation." 38 C.F.R. § 4.114. To the extent that the diagnostic codes listed exclude those of the upper digestive tract (mouth, lips, tongue, esophagus) and lower digestive tract (anus and rectum), separately rated disabilities may be permissible so long as each disability is found to exhibit different symptoms. In this case, the Board notes that Diagnostic Codes 7200 to 7205 are not included in the prohibition against combining separate rating under DCs 7301 to 7329 and 7331, 7342, and 7345 to 7348. Applying these criteria to the facts of the case, the Board finds that the Veteran's gastrointestinal disorder warrants a higher 30 percent rating. The evidence that supports this conclusion is May 2008 VA examinations, private treatment records from 2003 to 2011, and his testimony at the March 2011 Travel Board Hearing . The Veteran's private treatment records show the Veteran's weight was 194 pounds in May 2003. In July 2003, he underwent bilateral inguinal hernia repairs. In July 2004, his weight was 194 pounds. The July 2004 treatment record indicates severe groin pain. An October 2006 letter from A.H.P., M.D. states that the Veteran suffers from chronic constipation especially with straining at stool. At the May 2008 VA examination, the Veteran reported that he had anal itching, tenesmus, and hemorrhoids with bleeding. The Veteran reported that he had lost 5 pounds in the last year. His weight was 192 pounds at the examination. The Veteran reported no diarrhea. The examiner found that the Veteran's abdomen was flat and soft. Bowel sounds were normal. The examiner noted that the sphincter was tight and there was a small internal hemorrhoid. A March 2011 private treatment record from L.S., M.D. states that the Veteran has irritable bowel syndrome, abdominal pain, constipation, and diarrhea. A March 2011 private treatment record from W.B.S., M.D. states the Veteran suffers from IBS with constant and severe abdominal pain and alternating constipation and diarrhea. At the October 2006 Travel Board hearing, the Veteran and his spouse testified that the Veteran had frequent constipation which he treated with stool softeners. At the March 2011 Travel Board hearing, the Veteran testified to constant abdominal pain and cramping. The Veteran testified that he took Miralax daily to relieve his symptoms. The Veteran testified that he has alternating diarrhea and constipation but predominantly constipation. The Veteran testified that his weight had been as high as 198 pounds and as low as 190 in the last year. The Veteran's condition warrants the higher 30 percent rating because he has alternating diarrhea and constipation and more or less constant abdominal distress. The Veteran testified at the March 2011 that he had constipation and diarrhea and constant abdominal pain. The private treatment record from W.B.S., M.D. also states that the Veteran has constant abdominal pain and alternating diarrhea and constipation. Based on this evidence, the Veteran's condition warrants the higher 30 percent rating. As the 30 percent rating is the schedular maximum under DC 7319, the Veteran is not entitled to a higher schedular rating under this diagnostic code. The Board will discuss entitlement to a higher rating on an extraschedular basis in the following section. Therefore as the Veteran has constant abdominal pain and alternating diarrhea and constipation, his condition warrants the higher 30 percent rating. Accordingly, the Veteran's claim for an increased rating is granted. As the Veteran's condition has never been more than 30 percent disabling since the grant of service connection, there is no basis to "stage" the rating under Fenderson. III. Extraschedular Consideration Pursuant to § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1) (2010). The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). If the evidence raises the question of entitlement to an extraschedular rating, 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"). Here, because the Board finds that the schedular rating of 30 percent for the Veteran's chronic constipation contemplates the Veteran's symptoms, referral to the Under Secretary for Benefits or the Director of Compensation and Pension Service for consideration of an extra-schedular evaluation is not required. In other words, there is no evidence the Veteran's chronic constipation has caused marked interference with his employment - meaning above and beyond that contemplated by his schedular rating, or required frequent periods of hospitalization so as to render impractical the application of the regular schedular standards. See Thun. Moreover, the Veteran reported being employed full-time and did not indicate that he had missed any days from work due to his gastrointestinal disorder. According to 38 C.F.R. § 4.1, generally, the degrees of disability specified in the rating schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. Indeed, in Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993), the Court reiterated that the disability rating, itself, is recognition that industrial capabilities are impaired. So the Board does not have to refer this case for extra-schedular consideration. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER The rating for the Veteran's chronic constipation is increased to 30 percent disabling, subject to the laws and regulations governing the payment of VA compensation. ____________________________________________ JOAQUIN AGUAYO-PERELES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs