Citation Nr: 1111679 Decision Date: 03/23/11 Archive Date: 04/05/11 DOCKET NO. 06-36 646 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an initial disability rating in excess of 30 percent for service-connected irritable bowel syndrome. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had active service from September 1984 to September 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), which, in pertinent part, granted service connection for irritable bowel syndrome, assigning an initial noncompensable disability rating. The Veteran expressed disagreement with the assigned disability rating and perfected a substantive appeal. By rating decision dated in February 2007, the RO assigned an increased disability rating of 30 percent for the service-connected irritable bowel syndrome. Applicable law provides that absent a waiver, a claimant seeking a disability rating greater than assigned will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and that a claim remains in controversy where less than the maximum available benefits are awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran has not withdrawn the appeal as to the issue of a disability rating greater than assigned, therefore, the issue remains in appellate status. In his November 2006 Appeal To Board Of Veterans' Appeals (VA Form 9), the Veteran requested that he be scheduled for a personal hearing over which a Veterans Law Judge of the Board would have presided while at the RO. The requested hearing was scheduled for February 2009. Although he was notified of the time and date of the hearing by mail sent to his last known address, he failed to appear for that hearing and neither furnished an explanation for his failure to report nor requested a postponement or another hearing. Pursuant to 38 C.F.R. § 20.704(d) (2010), when an appellant fails to report for a scheduled hearing and has not requested a postponement, the case will be processed as though the request for a hearing was withdrawn. This matter was previously before the Board in November 2009, at which time it was remanded for additional development. It is now returned to the Board. The mandates of the remand have been substantially completed. The Board notes that in light of the fact that the Veteran currently has a combined 80 percent disability rating, see July 2010 Rating Decision, the record indicates that the Veteran may no longer be able to work due to his service connected disabilities. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans' Claims (Court) held that a TDIU claim is part of an increased disability rating claim when such claim is raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. As such, the issues before the Board are as set forth above. The issue of entitlement to a TDIU 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. FINDING OF FACT The Veteran's irritable bowel syndrome is manifested by alternating constipation and diarrhea, and occasional rectal bleeding. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 30 percent for irritable bowel syndrome have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.655, 4.40, 4.45, 4.114, Diagnostic Code 7319 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist In correspondence dated in May 2004, March 2006 and November 2009, VA satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2010) and 38 C.F.R. § 3.159(b) (2010). Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claims; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. The RO also notified the Veteran of the process by which initial disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's claim arises from his disagreement with the initial disability rating following the grant of service connection. Once service connection is granted, the claim is substantiated and additional notice is not required. Thus, any defect in the notice provided to the Veteran is not prejudicial. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002 & Supp. 2010) and 38 C.F.R. § 3.159(c) (2010). Service treatment records have been associated with the claims file. All identified and available treatment records have been secured. The Veteran has been medically evaluated in conjunction with his claim. The Board notes that in its November 2009 Remand, the Board directed that the Veteran be scheduled for a current VA medical examination so as to fairly and accurately assess the level of the Veteran's irritable bowel syndrome. The Veteran was scheduled for the requested VA examination in December 2009, however, he failed to report to the examinations and did not provide good cause for his failure to report. Accordingly, the issue must be decided on the evidence of record. See 38 C.F.R. § 3.655 (2010); see also Turk v. Peake, 21 Vet. App. 565, 569 (2006). Thus, the duties to notify and assist have been met. Increased disability ratings Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating 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. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2010). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2010); Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the Veteran's entire history is reviewed when assigning a disability rating, 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. Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Veteran is appealing the initial assignment of a disability rating, and as such, the severity of the disability is to be considered during the entire period from the initial assignment of the disability rating to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). Additionally, in determining the present level of a disability for any increased rating 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. 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 demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Words such as "moderate," "moderately severe," and "severe" 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 (2010). Use of terminology such as "severe" by VA examiners and others, although 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 (2010). 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 38 C.F.R. § 4.14; 38 C.F.R. § 4.113 (2010). Disabilities of the digestive system are rated in accordance with 38 C.F.R. § 4.114, Diagnostic Codes 7200 to 7348. Section 4.114 provides that ratings under Diagnostic Code 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348, inclusive, will not be combined with each other. A single disability rating will be assigned under the Diagnostic Code which reflects the predominant disability picture, with elevation to the next higher disability rating where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114. The Veteran's irritable bowel syndrome is rated as 30 percent disabling under 38 C.F.R. § 4.114, Diagnostic Code 7319. Under Diagnostic Code 7319, the maximum 30 percent disability rating is in order when the disability is severe, with diarrhea, or with alternating diarrhea and constipation, with more or less constant abdominal distress. See 38 C.F.R. § 4.114, Diagnostic Code 7319. A VA general medical examination report dated in May 2004 shows that the Veteran reported a history of irritable bowel syndrome with gas, diarrhea, and constipation his entire adult life. He indicated that he would try to control it with diet and astispasmodics. There are many things that would exacerbate his bowel habits, but occasionally he did have normal bowel movements. He had been able to gain weight and had no blood in his bowel movements. He had a colonoscopy eight years earlier which was normal. He also reported having osteoarthritis, for which he would take Indocin, but this would aggravate his irritable bowel syndrome. Physical examination revealed that the abdomen was soft, nontender, and non-distended, with active bowel sounds. The diagnosis was irritable bowel syndrome, diarrhea and constipation predominant. This was controlled with meticulous attention to diet and avoiding irritants. A VA examination report dated in December 2006 shows that the Veteran's weight was stable, and he had no nausea or vomiting. He would have alternate constipation and diarrhea. Usually he would have two bowel movements per day, but approximately every 10 days, he would have four bowel movements along with cramping, gas, and bloating, and with severe urgency bowel movement. This would last for several days, three to four days, followed by constipation and occasional rectal bleeding. He had no fistula. The discomfort in the lower abdomen had increased over the preceding two years. He was working in the area of construction, but was completing his schooling and wanted to get into a different type of job because of the severity or urgency with the bowel movements. Physical examination revealed that there was no malnutrition or anemia. He had diffuse abdominal pains with gas bloating and cramping for which he would take over-the-counter medication which helped somewhat. He had no recent colonoscopies. The diagnosis was irritable bowel syndrome. From a functional standpoint, he was finishing school in the area of management and was planning to get out of construction because he had to leave the site due to urgency of bowel movement. He planned to get a job in management where he would be closer to the bathroom. Having carefully considered the competent medical evidence of record, the Board concludes that a disability rating greater than 30 percent for irritable bowel syndrome is not warranted for any time covered by this appeal. A review of the medical evidence of record shows that the Veteran's irritable bowel syndrome was primarily manifested by alternating constipation and diarrhea, with occasional rectal bleeding. In order to receive the maximum 30 percent disability rating, the disability must be severe, with symptoms such as diarrhea or alternating diarrhea and constipation, with more or less constant abdominal distress. The Board finds that the Veteran's symptoms most closely approximate the criteria for a 30 percent disability rating under Diagnostic Code 7319. As noted above, the 30 percent is the highest disability rating available under Diagnostic Code 7319. The Board has considered whether the Veteran could receive a higher rating under any other diagnostic code, but has found none. In this regard, the Board notes that the Veteran does not have diagnoses of pancreatitis, hepatitis C, hepatitis B, gastritis, ulcer, any kind of colitis, hernia, peritoneal adhesions, or malignant neoplasms. His symptoms, although constant, do not affect his general health; he has generally maintained his weight, not lost weight; and he has never been found to be incapacitated as he has continued to pursue suitable employment opportunities. Therefore, a higher disability rating under any other diagnostic code provision is not in order. Additionally, the Board has considered the statements of the Veteran as to the extent of his current symptoms. He is certainly competent to report that his symptoms are worse. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, in evaluating a claim for an increased schedular rating, VA must only consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. Massey v. Brown, 7 Vet. App. 204, 208 (1994). To the extent that the Veteran argues or suggests that the clinical data supports an increased disability rating or that the rating criteria should not be employed, he is not competent to make such an assertion. Based upon the guidance of the United States Court of Appeals for Veterans Claims (Court) in Fenderson, the Board has considered whether a staged rating is appropriate. However, in the present case, the Veteran's symptoms remained constant throughout the course of the period on appeal and as such staged ratings are not warranted. After reviewing all pertinent provisions, the Board can find no basis on which to assign a higher or separate disability rating. The preponderance of the evidence is against an initial disability rating in excess of 30 percent for the Veteran's irritable bowel syndrome. 38 C.F.R. §§ 3.102, 4.114 (2010). Extra-schedular Consideration Finally, the Board finds that the Veteran's irritable bowel syndrome does not warrant referral for extra-schedular consideration. In exceptional cases where schedular ratings are found to be inadequate, consideration of an extra-schedular disability rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extra-schedular disability rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. The Board finds that the evidence does not warrant referral of the Veteran's claim for extra-schedular consideration. The level of severity of the Veteran's irritable bowel syndrome is adequately contemplated by the applicable diagnostic criteria. The criteria provide for a higher rating, but as has been thoroughly discussed above, the rating assigned herein is appropriate. In view of the adequacy of the disability rating assigned under the applicable diagnostic criteria, consideration of the second step under Thun is not for application in this case. Accordingly, the claim will not be referred for extra-schedular consideration. ORDER An initial disability rating in excess of 30 percent for service-connected irritable bowel syndrome is denied. REMAND Unfortunately, a remand is required in this case as to the issue of entitlement to a TDIU. 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 he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2010); 38 C.F.R. § 3.159(c), (d) (2010). As noted above, in light of the fact that the Veteran currently has a combined 80 percent disability rating, and thus the Veteran may no longer be able to work due to his service connected disabilities. Therefore, the claim of TDIU is part and parcel with the original claim and is properly before the Board. The law provides that a TDIU may be granted upon a showing that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show (1) a single disability rated as 100 percent disabling; or (2) that the disabled person is unable to secure or follow a substantially gainful occupation as a result of his or her service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. Id. In determining whether Veteran is entitled to a total disability rating based upon individual unemployability, neither his non-service-connected disabilities nor his advancing age may be considered. See 38 C.F.R. § 3.341(a); Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992). To date, the Veteran has not been afforded a VA medical examination regarding whether his service-connected disabilities prevent him from securing or following a substantially gainful occupation. As such, the Board must remand this claim for such on opinion to be obtained. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC shall schedule the Veteran for an appropriate VA TDIU medical examination or examinations, to be conducted by a qualified physician, to ascertain whether one or more of his service-connected disabilities (irritable bowel syndrome, degenerative disc disease of the cervical spine, right and left knee disabilities, right and left shoulder disabilities, right sacroiliac disability, right and left ankle disabilities, and bilateral pes planus) have made the Veteran incapable of sustaining regular substantially gainful employment. An assessment of the Veteran's employment history, educational background, and day-to-day functioning should be provided. In forming the opinion, the examiner should disregard both the age and the non-service-connected disabilities of the Veteran. A complete rationale for any opinion expressed shall be provided. 2. The RO/AMC will then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above is required. If further action is required, it should be undertaken prior to further claim adjudication. 3. The RO/AMC will then readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until he is so informed. He has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. 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). ______________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs