Citation Nr: 1107175 Decision Date: 02/23/11 Archive Date: 03/04/11 DOCKET NO. 07-14 406 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial compensable disability rating for focal colitis, originally claimed as ulcerative colitis). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Michael J. A. Klein, Associate Counsel INTRODUCTION The Veteran had active service from June 1991 to October 1993 and January 2003 to December 2004. This appeal comes to the Board of Veterans' Appeals (Board) from an October 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which, inter alia, granted the Veteran's claim for service connection for focal active colitis (originally clamed as ulcerative colitis) and awarded a 0 percent (noncompensable) rating. FINDINGS OF FACT 1. The Veteran's focal colitis manifests at a moderate level with frequent episodes of bowel disturbance associated with abdominal distress. 2. The Veteran's focal colitis does not manifest at a severe level with no evidence of manifestations of severe diarrhea and without a more or less constant level of abdominal distress. CONCLUSION OF LAW The criteria are met for a higher initial disability rating of 10 percent, but no greater, for the Veteran's service-connected focal colitis. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.7, 4.21, 4.114, Diagnostic Code 7299-7219 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Duties to Notify and Assist Review of the claims folder reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The duty to notify was accomplished by way of the VCAA letter from the agency of original jurisdiction (AOJ) to the Veteran dated in June 2005. That letter effectively satisfied the notification requirements of the VCAA consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) by: (1) informing him about the information and evidence not of record that was necessary to substantiate his initial claim; (2) informing him about the information and evidence VA would seek to provide; and (3) informing him about the information and evidence he was expected to provide. See also Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Furthermore, the June 2006 letter from the AOJ further advised the Veteran of the elements of a disability rating and an effective date, which are assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007) (Dingess). With regard to the timing of VCAA notice, the Board sees the AOJ did not provide the Veteran with all general VCAA notice prior to the October 2005 determination on appeal. But in Pelegrini II, the U.S. Court of Appeals for Veterans Claims (Court) clarified that in these situations VA does not have to vitiate that decision and start the whole adjudicatory process anew, as if that decision was never made. Rather, VA need only ensure the Veteran receives (or since has received) content-complying VCAA notice, followed by readjudication of his claims, such that he is still provided proper due process. In other words, he must be given an opportunity to participate effectively in the processing of his claims. The United States Court of Appeals for the Federal Circuit (Federal Circuit Court) has held that a Statement of the Case (SOC) or Supplemental SOC (SSOC) can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC. Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV). In fact, as a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. See also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the timing error was cured. After providing Dingess- compliant notice in June 2006, the AOJ readjudicated the Veteran's claim in the January 2007 SOC and August 2007 SSOC. Therefore, the timing defect in the notice has been rectified. Prickett, 20 Vet. App. at 376. In addition, the Veteran has never alleged how any timing error prevented him from meaningfully participating in the adjudication of his claim. As such, the Veteran has not established prejudicial error in the timing of his VCAA notice. See Shinseki v. Sanders / Simmons, 129 S. Ct. 1696 (2009). However, with regard to content, it is noted the claim at issue stems from an initial rating assignment. In this situation, the Court has held that an appellant's filing of a notice of disagreement (NOD) regarding an initial disability rating or effective date, such as the case here, does not trigger additional section 5103(a) notice. Indeed, the Court has determined that to hold that section 5103(a) continues to apply after a disability rating or an effective date has been determined would essentially render sections 7105(d) and 5103A and their implementing regulations insignificant and superfluous, thus disturbing the statutory scheme. Dingess at 491, 493, 500- 501. The Court, however, more recently clarified its holding in Dingess, indicating it was limited to situations where service connection was granted and the disability rating and effective date assigned prior to the enactment of the VCAA - so prior to November 9, 2000. If, as here, this did not occur until after that date, the Veteran is entitled to pre-decisional notice concerning all elements of his claims, including these downstream disability rating and effective date elements. And if he did not receive this notice, for whatever reason, it is VA's obligation to explain why this is not prejudicial error, i.e., harmless. See Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Notwithstanding its holding in Dunlap, the Court most recently clarified in Goodwin v. Peake, 22 Vet. App. 128, 137 (2008), that where a service connection claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to any downstream initial rating and effective date elements. The Court added that its decision was consistent with its prior decisions in Dingess and Dunlap, supra. In this regard, the Court emphasized its previous holding in Dingess 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, and its application is no longer required because the claim has already been substantiated." Dingess, 19 Vet. App. at 490. Thereafter, once a NOD has been filed, only the notice requirements for rating decisions and SOCs described within 38 U.S.C. §§ 5104, 7105 control as to the further communications with the appellant, including as to what "evidence [is] necessary to establish a more favorable decision with respect to downstream elements...." Id. Applying the above analysis to the present case, the Veteran does not contend, nor does the evidence show, any notification deficiencies with respect to content that have resulted in prejudice. See Shinseki v. Sanders / Simmons, 129 S. Ct. 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). In fact, with respect to content, the AOJ actually provided the Veteran with downstream Dingess notice in the June 2006 letter pertaining to the disability rating and effective date elements of his claim. Further, after the Veteran filed an NOD as to a higher initial rating for focal colitis, the additional notice requirements described within 38 U.S.C. §§ 5104, 7105 were met by the January 2007 SOC and subsequent August 2007 SSOC. Specifically, these documents provided the Veteran with a summary of the pertinent evidence as to his claim, a citation to the pertinent laws and regulations governing a higher rating for his focal colitis, and a summary of the reasons and bases for the AOJ's decision to deny a higher rating for his focal colitis. Therefore, the Veteran has not met his burden of establishing any prejudice as to notice provided for the downstream initial rating and effective date elements of his claim, such that there is no prejudicial error in the content of his notice. In addition to notification, VA is required to assist the Veteran in finding evidence to support his claim. See 38 U.S.C.A. § 5103A. The AOJ has secured the Veteran's service treatment records (STRs), VA treatment records, two VA medical examinations regarding the severity and nature of the Veteran's focal colitis, and private medical evidence as identified by the Veteran. The Veteran has submitted personal statements, and private medical evidence. The Veteran has not provided authorization for VA to obtain any additional private medical records, nor has he indicated that such records exist. Therefore, the Board concludes that the duty to assist the Veteran in gathering information to advance his claim has been met. The Veteran has been provided with two VA medical examinations regarding his focal colitis in July 2005 and June 2007. The Board notes that the June 2007 examination indicated that the medical records were not available. However, the examiner indicated a review of the Veteran's relevant colonoscopies of March 2004 and May 2007, further noting the Veteran's history of symptoms related to his focal colitis. Therefore, the VA medical examination of June 2007 provided was adequate for rating purposes. See 38 C.F.R. § 4.2. Furthermore, the mere fact that an examiner did not review the claims folder does not render an examination inadequate, particularly if it can be shown by the content of the examination that the examiner is familiar with the claimant's medical history. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); D'Aries v. Peake, 22 Vet. App. 97, 106 (2008). The Board also notes that the last VA examination for his focal colitis was conducted in June 2007 over three years ago. However, there is no new evidence of a worsening of the Veteran's condition after the June 2007 VA medical examination; without evidence that the Veteran's service-connected focal colitis has worsened, the Board is not required to remand the Veteran's claim for a new VA medical examination. See VAOPGCPREC 11-95 (April 7, 1995). As the Veteran has been provided with two complete VA medical examinations which addressed the manifestations of his disorder, the Board concludes that the AOJ has fully complied with the duty to provide the Veteran with a VA medical examination which is adequate to address the service- connected focal colitis currently on appeal. Governing Laws and Regulations for Higher Disability Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Because the Veteran has perfected an appeal as to the assignment of an initial rating following the initial award of service connection for his focal colitis, the Board is required to evaluate all the evidence of record reflecting the period of time between the effective date of the initial grant of service connection for each disorder until the present. This could result in "staged ratings" based upon the facts found during the period in question. Fenderson v. West, 12 Vet. App. 119, 126 (1999). That is to say, the Board must consider whether there have been times since the effective date of his award when his disabilities have been more severe than at others. Id. at 126. Analysis - Compensable Disability Rating for the Veteran's Service-Connected Focal Colitis In the October 2005 rating decision currently on appeal, the Veteran was granted service connection for the focal colitis, originally claimed by the Veteran as ulcerative colitis, and assigned a noncompensable (0 percent) rating under Diagnostic Code 7323. 38 C.F.R. § 4.114. The Veteran currently seeks a compensable rating his service-connected focal colitis. During his military service, the Veteran was treated in September 2004 for diarrhea and loose stools, with no blood in the stool. In December 2004, shortly before his release from active duty, the Veteran provided a report of his medical history which indicated that he was experiencing "[s]tomach, liver, intestinal trouble, or ulcer," but also indicated that he was not experiencing "[r]ectal disease, hemorrhoids, or blood from the rectum." A February 2005 private treatment record from M. Pappas, M.D., indicated that the Veteran was experiencing watery diarrhea 3-4 times per day, and indicated that there was no blood. In March 2005, the Veteran was provided with a colonoscopy by Dr. Pappas, which diagnosed him with moderate proctitis. A subsequent lab report dated in April 2005 from Quest Diagnostics, indicated it had ruled out ulcerative colitis and diagnosed the Veteran with focal active colitis. The physician found "idiopathic inflammatory bowel disease and acute self-limited colitis." The Veteran was provided with a VA medical examination in July 2005, which found that the Veteran frequent bowel movements (2-3 times per day) with associated urgency, but no rectal bleeding. In March 2006, a VA medical treatment record indicates that the Veteran's colitis was in remission, and subsequent VA medical treatment records indicated that in April 2006 and January 2007 there was no diarrhea, constipation, abdominal pain, changes in color of stool, or BRBPR (bright red blood per rectum). However, in March 2007, the Veteran was indicated by a VA medical treatment record as experiencing loose stools 3-4 times per day. In April 2007, the Veteran was indicated as experiencing 4-7 loose bowel movements per day, with some episodes of "brb" (bright red blood). However, the Veteran's VA medical treatment record indicate that he was provided with a colonoscopy in May 2007 which found "no visible anal lesion or abnormality," the rectal mucosa appeared normal, and the colon had no evidence of inflammatory process, polyps, masses, lesions, or diverticula. The colonoscopy concluded that there were "[n]o immediate complications," and the examination was "normal to the cecum." Finally the Veteran was provided with a VA medical examination in June 2007; the examiner indicated that the Veteran was experiencing "[p]rotocolitis of unknown etiology," the Veteran's symptoms included diarrhea 3-4 times per day, which was usually sudden, explosive, and frequently involved blood. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." 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 diagnosis and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). In this case, the Board has considered whether another rating code is "more appropriate" than the one used by the AOJ. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). Currently, the Veteran's disorder is rated under Diagnostic Code 7323 for ulcerative colitis. The Board notes that ulcerative colitis is defined as "chronic, recurrent ulceration in the colon," "manifested clinically by cramping abdominal pain, rectal bleeding, and loose discharges of blood, pus, and mucus with scanty fecal particles." Complications include hemorrhoids, abscesses, fistulas, perforation of the colon, psuedopolyps, and carcinoma. See Dorland's Illustrated Medical Dictionary 390 (31st ed. 2007). A review of the medical evidence of record shows that the Veteran has never been diagnosed with ulcerative colitis. In fact, the April 2005 private treatment record from Quest Diagnostics specifically ruled out ulcerative colitis. Furthermore, he does not display the characteristics noted above as clinical indications of ulcerative colitis. He has experienced some cramping and blood in his stool. However, there is no evidence of rectal bleeding, nor has the Veteran's stool been characterized as including loose discharges of blood, pus, and mucus with scanty fecal particles, nor is there any evidence of hemorrhoids, abscesses, fistulas, perforation of the colon, psuedopolyps, or carcima. Id. Diagnostic Code 7323 provides ratings for ulcerative colitis and considers the following symptoms: infrequent or frequent exacerbations, malnutrition, anemia, and general debility, serious complication such as liver abscess, malnutrition, or the level of health. 38 C.F.R. § 4.114. While Diagnostic Code 7323 does not expressly define the nature of the term "manifestations" in relation to a rating for ulcerative colitis, complications indicated as associated with ulcerative colitis, as noted above, have not been found or indicated in the record. As such, the Board concludes that review of the regulations for evaluation of disorders of the digestive system reveals that a more appropriate evaluation by analogy would be under 38 C.F.R. § 4.114, Diagnostic Code 7399-7319, for irritable colon syndrome. 38 C.F.R. § 4.27. Diagnostic Code 7319, which is indicated for irritable colon syndrome, further indicates that it may be applied to "spastic colitis, mucous colitis, etc." as such implying that Diagnostic Code 7319 is intended with some flexibility in application to various relevant disorders which are relevant to irritations of the colon. Further, the Diagnostic Code specifically contemplates: disturbances of bowel function, episodes of abdominal distress, diarrhea, and constipation, which is more consistent with the manifestations of the Veteran's service-connected focal colitis. 38 C.F.R. § 4.114. Rating his disability under Diagnostic Code 7319 as opposed to Diagnostic Code 7323 permits a greater probability for a higher rating for the Veteran, in particular as the Veteran's manifestations are more clearly contemplated under this rating code. See again Butts, 5 Vet. App. at 538 (choice of diagnostic code should be upheld if supported by explanation and evidence). Diagnostic Code 7319 provides ratings for irritable colon syndrome (spastic colitis, mucous colitis, etc.). Mild irritable colon syndrome, with disturbances of bowel function with occasional episodes of abdominal distress, is rated noncompensably (0 percent) disabling. 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. 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. The words "mild," "moderate" and "severe" as used in the various diagnostic codes are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "mild" or "moderate" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 As noted above, in the February 2005 private treatment record from Dr. Pappas, the Veteran indicated that he had been experiencing watery diarrhea 3-4 times per day, without blood, but with occasional nocturnal symptoms. In March 2005, Dr. Pappas diagnosed the Veteran with moderate proctitis. At the time of his first VA medical examination in July 2005, the Veteran was found to be experiencing "intermittently frequent bowel movements," two to three times per day, with associated urgency, and occasional cramping, but no consistent abdominal pain. In his June 2006 notice of disagreement (NOD), the Veteran indicated that his condition affects him daily and limits his productivity at work. As such, the Board concludes that the evidence of multiple episodes of diarrhea per day with urgency and occasional distress shows evidence of frequent episodes of bowel disturbance as well as associated abdominal distress, such that an initial rating rating of 10 percent, but no greater, is appropriate, for the initial appeal period. However, the record does not show severe diarrhea with constant abdominal distress, such that a rating in excess of 10 percent is not appropriate. 38 C.F.R. § 4.3. Subsequently, the Veteran's VA medical treatment records indicate that his colitis was in remission, with no symptoms in March and April 2006, and January 2007. However, in his February 2007 substantive appeal (VA Form 9), the Veteran indicated that his condition does act up frequently, and that he has difficult days which necessitated calling in sick to work "a few times." Furthermore, the Veteran's VA medical treatment records show that he reported that his symptoms had returned in March 2007, when he indicated that he was experiencing loose stools about three to four times per day. Then, in April 2007 he was indicated as experiencing four to seven loose bowel movements per day with some episodes of bright red blood, although he was not taking any medication. Finally, at the time of his June 2007 VA medical examination, the Veteran was experiencing diarrhea three to four times per day, which were noted as being "sudden, explosive, and frequently with blood." As such, it appears that the Veteran has had varying levels of severity of his service-connected focal colitis for the appeal period subsequent to his initial diagnosis, including a brief period of remission. As such, the evidence of between three to four or four to seven episodes shows frequent bowel disturbance, and the evidence of these episodes being described as sudden, explosive, and involving blood shows evidence of abdominal distress, such that these records indicate that a continued disability rating of 10 percent is appropriate under Diagnostic Code 7319. 38 C.F.R. § 4.114. However, even with the single notation in April 2007 that the Veteran may experience up to seven bowel movements in a day, the evidence from this period does not show severe diarrhea with constant abdominal distress. Therefore, the increased initial rating of 10 percent for the Veteran's focal colitis remains appropriate in consideration of the subsequent medical evidence of record. 38 C.F.R. § 4.3. In conclusion, the Board has found that the Veteran's service- connected focal colitis manifests at a moderate level, with frequent episodes of bowel disturbance with abdominal distress, such that an increased initial rating of 10 percent is appropriate for the appeal period. The Board finds that the Veteran's service-connected focal colitis should not be increased for any other separate period based on the facts found during the appeal period. Fenderson, 12 Vet. App at 125-26. Extraschedular Rating for Veteran's Service-Connected Focal Colitis The Court recently clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111, 115-116 (2008). First, the AOJ 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 AOJ or Board must determine whether the Veteran'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 Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. Id. The Board finds no reason to refer the case to the Compensation and Pension Service for consideration of an extraschedular evaluation under 38 C.F.R. § 3.321(b). In this case, the specific manifestations of the Veteran's focal colitis, including disturbances of bowel function and abdominal discomfort, are specifically contemplated by the relevant rating criteria. With the applicable rating criteria requiring consideration of these elements of the Veteran's disability, an extraschedular analysis is moot. However, even if the Board were to concede that the rating criteria do not address all of the effects of the Veteran's service-connected focal colitis, the evidence of record does not show any exceptional or unusual circumstances, to suggest that the Veteran is not adequately compensated by the regular Rating Schedule. The Veteran has indicated that his focal colitis limits his productivity at work, and he has even called in sick "a few times." See the Veteran's June 2006 NOD, and February 2007 VA Form 9. However, it appears that the Veteran has been employed throughout the appeal period. Further, the July 2005 VA medical examiner indicated that the Veteran's focal colitis was not disabling, and as such did not directly interfere with his work. As such, despite some evidence of a few missed days of work, the Veteran has not submitted any additional evidence to show marked interference with employment, such as lost wages, or a work report indicating reduced productivity due to his service- connected focal colitis which might serve to show that an additional extra-schedular rating would be appropriate. Further, there is no evidence of inpatient treatment or hospitalization for his focal colitis. As such, the evidence does not show exceptional or unusual circumstances, such as marked interference with employment or frequent hospitalization to suggest that the Veteran is not adequately compensated by the regular Rating Schedule. Therefore, the evidence of record simply does not warrant an extraschedular rating. In reaching this conclusion, the Board notes that, 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. 38 C.F.R. § 4.1; VAOPGCPREC 6-96. See also, Bagwell v. Brown, 9 Vet. App. 337, 338 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER An initial disability rating of 10 is granted for the Veteran's service-connected focal colitis, subject to the laws and regulations governing the payment of VA compensation. ____________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs