Citation Nr: 1300281 Decision Date: 01/04/13 Archive Date: 01/11/13 DOCKET NO. 10-22 385A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to a rating in excess of 10 percent for irritable bowel syndrome (IBS). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from March 1997 to March 2005. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. A Travel Board hearing was held in March 2012 before the undersigned Veterans Law Judge, sitting in Washington, D.C. A copy of the transcript of that hearing is of record. FINDINGS OF FACT 1. For the period on appeal prior to January 19, 2008, the Veteran's IBS was moderate in nature, characterized by frequent symptoms bowel disturbance with abdominal distress, to include intermittent nausea, constipation, stomach bloating, and abdominal pain. 2. For the period since January 19, 2008, the Veteran's IBS has been severe in nature, characterized by more or less constant abdominal distress associated with stomach bloating along with alternating diarrhea and constipation. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for IBS prior to January 19, 2008, have not been met. 38 U.S.C.A. § 1155, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.114, Diagnostic Code (DC) 7319, 4.114 (2012). 2. With resolution of reasonable doubt in the Veteran's favor, an increased evaluation of 30 percent is warranted for IBS from January 19, 2008. 38 U.S.C.A. § 1155, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.114, DC 7319, 4.114 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. First, VA has a duty under the VCAA to notify a claimant and any designated representative of the information and evidence needed to substantiate a claim. In this regard, a January 2008 letter to the Veteran from the RO specifically notified him of the substance of the VCAA, including the type of evidence necessary to establish entitlement to service connection on a direct and presumptive basis, and of the division of responsibility between the Veteran and the VA for obtaining that evidence. Consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VA essentially satisfied the notification requirements of the VCAA by way of these letters by: (1) informing the Veteran about the information and evidence not of record that was necessary to substantiate his claims; (2) informing the Veteran about the information and evidence VA would seek to provide; and (3) informing the Veteran about the information and evidence he was expected to provide. The United States Court of Appeals for Veterans Claims (Court) held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, to specifically include that a disability rating and an effective date will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the Veteran was provided with notice of this information in the January 2008 letter mentioned above. Second, VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claims. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2011). The information and evidence associated with the claims file consist of his service treatment records (STRs), VA medical treatment records, private post-service medical treatment records, VA examinations, and statements and testimony from the Veteran and his representative. There is no indication that there is any additional relevant evidence to be obtained by either VA or the Veteran. Increased Ratings - In General Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2011); 38 C.F.R. Part 4 (2012). Separate rating codes identify the various disabilities. 38 C.F.R. Part 4 (2012). In determining the current level of impairment, the disability must be considered in the context of the whole-recorded history, including service treatment records. 38 C.F.R. §§ 4.2, 4.41 (2012). The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment, and the effect of pain on the functional abilities. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 (2012); DeLuca v. Brown, 8 Vet. App. 202, 204-06 (1995). Under the laws administered by VA, the Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002 & Supp. 2011); 38 C.F.R. § 4.3 (2012). Where entitlement to compensation has already been established and an increase in disability rating is at issue, the present level of disability is of primary concern. While the entire recorded history of a disability is to be reviewed by the rating specialist, the regulations do not give past medical report precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In Fenderson v. West, 12 Vet. App. 119 (1999), the Court held that the rule articulated in Francisco did not apply to the assignment of an initial rating for a disability following an initial award of service connection for that disability. Fenderson, 12 Vet. App. at 126; Francisco, 7 Vet. App. at 58. IBS Disabilities of the digestive system are assigned under the provisions of 38 C.F.R. § 4.114 (2012). Ratings under DCs 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348, inclusive, will not be combined with each other. 38 C.F.R. § 4.114, opening paragraph. A single evaluation instead will be assigned under the DC which reflects the predominant disability picture. Id. Among the aforementioned DCs, the Board finds that DC 7319 most accurately reflects the Veteran's predominant disability picture. As will be set forth below, he has been diagnosed with IBS, and he has been rated pursuant to DC 7319 since service connection was established. His primary symptoms include gastrointestinal pain and bowel movement issues. DC 7319 is the subject of this diagnosis (as irritable colon syndrome is a synonym for irritable bowel syndrome) and addresses both of these symptoms. Other DCs, specifically DCs 7305and 7306 are not for application as an ulcer is not indicated. As to DCs 7308, 7321, 7328, 7346, 7347, and 7348, it is noted that they address one or both of the Veteran's primary symptoms but each concerns a diagnosis which has not been made with respect to him. DC 7307 further concerns a diagnosis which has not been made with respect to the Veteran. The Veteran's IBS is rated pursuant to DC 7319. Under that code, a 10 percent (moderate) rating is assigned for irritable colon syndrome (IBS) (spastic colitis, mucous colitis, etc.) for frequent episodes of bowel disturbance with abdominal distress. A 30 percent (severe) where there is diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. See 38 C.F.R. § 4.114, DC 7319 (2012). It is noted that the assignment of a particular DC is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One DC 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 DC by a VA adjudicator must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). The Board must also consider whether another rating code is "more appropriate" than the one used by the RO. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). For example, another potentially applicable DC is 7332 for impairment of sphincter control. A 10 percent rating is appropriate for constant, slight, or occasional moderate leakage. A 30 percent rating is warranted for occasional involuntary bowel movements, necessitating wearing a pad. A 60 percent rating is appropriate where there is extensive leakage and fairly frequent involuntary bowel movements. And, complete loss of sphincter control warrants a 100 percent rating. See 38 C.F.R. § 4.114, DC 7332 (2012). Background Service connection was established for IBS upon rating decision in November 2005 and a 10 percent evaluation was assigned, effective from March 14, 2005. The grant was based on inservice treatment for the condition. The 10 percent rating assigned at that time was based primarily on clinical findings made at a July 2005 VA examination. At that time, the Veteran denied any significant weight changes, but she did experience nausea with severe IBS episodes which occurred about once per month. She reported severe constipation and abdominal pain which occurred two to four times per month. When she did not have a bowel movement over the course of two or three days, she experienced severe pain. With IBS, the diameter of her stools was diminished. Her symptoms included chronic bloating every two days, and she had had two episodes of fecal incontinence. The Veteran denied large amounts of flatus, but she did report that she passed mucoid material with severe episodes. She was on a high fiber diet. On exam, there was tenderness to the right lower quadrant of the abdomen. There was no organomegaly and bowel sounds were active in all four quadrants. There was no ventral hernia present, and there was no evidence of malnutrition. Laboratory testing revealed mild anemia. IBS was diagnosed. Subsequently dated VA records show that the Veteran was seen in June 2005 for complaints associated with her IBS to include cramping. There was some blood when wiping but no pain. In January 2006, she noted that while she had been prescribed some medications, she was no longer taking most of them. She continued to have some alternating diarrhea and constipation along with abdominal cramps and gas, but she said that the condition was "not too bothersome lately." There was current blood in her stools. In October 2006, she reported side effects from medication that she was taking for IBS. She said that her stomach was bloated, and she could not go to the bathroom until late in the day. When she did go, her bowel movements were watery. She also felt nauseated. Upon VA examination on January 19, 2008, the Veteran's IBS was treated with three stool softeners per day. She reported ongoing symptoms of alternating constipation and diarrhea. She always felt bloated, and she usually had bowel movements once or twice a week. Her symptoms included nausea and abdominal pain prior to a bowel movement. Her stools were loose, and she had had two episodes of incontinence of stools. She rarely had a bowel movement without pain. In March 2008, the RO confirmed and continued the 10 percent rating in effect for IBS. In statements received in January 2009, the Veteran and her fiancé attested to an increase in her symptoms, to include constant abdominal distress. VA treatment records in February 2009 show continued treatment for constipation, diarrhea, bloating, and abdominal cramps. In April 2009, it was noted that she had been seen 6 weeks earlier for her gastrointestinal complaints. She had been placed on Prozac and her stool softener had been stopped. At this visit, she felt better, and her daily diarrhea had stopped. However, she only had a bowel movement every three to four days. She reported less abdominal pain and cramping, but increased gas. She was continued on Prozac, and she was restarted on stool softeners. In June 2009, she was treated for continued complaints associated with her IBS. She was told that this would be lifelong situation and that her symptoms would change frequently. She was on a stool softener even though she primarily had diarrhea. She wanted to discontinue taking Prozac, in part, because it resulted in a new symptom of urinary hesitancy. She thought, however, that the drug had helped reduce the symptoms of her IBS. She reported life stressors to include recently separating from her boyfriend. The diagnosis was IBS with strong stress factors. In January 2010, at a VA facility, the Veteran was seen for alternating diarrhea, constipation, crampy abdominal pain, passing of mucous, and intermittent rectal bleeding from hemorrhoids. These symptoms had been treated with fiber, anti-depressants, and understanding and dietary elimination of sweeteners, caffeine, and other drugs. She was to have a follow-up colonoscopy. This procedure was scheduled for February 22, 2010. Additional VA records dated through April 2010 are of record, but do not indicate that she underwent the procedure. She continued to take medication associated with her IBS, to include stool softeners and anxiety medication. At a March 2012 hearing, the Veteran testified that she continued to be treated for her symptoms at a VA facility. (The Board notes that her VA treatment records are from the VA Medical Center in Shreveport, Louisiana.) In fact, she had been seen by a gastrointestinal (GI) specialist in January 2012 and January 2013. (Hrg. tr. at pgs. 2-3.). She said that she did not undergo the colonoscopy in 2010 but did have an upper GI scope. (Hrg. tr. at pg. 5.) She reported diarrhea, constipation, and constant abdominal distress. (Hrg. tr. at pg. 6.) She sometimes missed work because of her symptoms, to include incontinence. (Hrg. tr. at pg. 9.) Analysis Based on the evidence of record, the Board finds that a rating in excess of 10 percent is not warranted for that period on appeal prior to January 19, 2008. As summarized above, during this period, the Veteran's IBS was manifested by moderate and frequent episodes of bowel disturbance with abdominal distress. While her symptoms were sometimes severe, they were not more or less constant. She experienced alternating diarrhea and constipation along with abdominal cramps and gas, but there was a period in early 2006 when the condition was not too bothersome. She began reporting feelings of stomach bloating and nausea later that year, but these symptoms were not noted to be constant. It is concluded by the Board that these manifestations of IBS are best contemplated by the 10 percent rating currently assigned pursuant to DC 7319 for moderate and frequent symptoms. Moreover, under DC 7332 for a rating in excess of 10 percent, the Veteran would have to show occasional involuntary bowel movements necessitating wearing a pad. While she had had two episodes of fecal incontinence, wearing of a pad was not reported. As of examination by VA on January 19, 2008, and thereafter, however, it is concluded that an increase in IBS symptoms is demonstrated. Specifically, some of her previous symptoms that were occasional were now constant. For example, she reported constant abdominal distress and constant stomach bloating as well as feelings of nausea. This represents an increase in symptomatology and is best represented by a 30 percent rating. All reasonable doubt was resolved in the Veteran's favor in making this favorable determination. 38 C.F.R. § 3.102 (2012). As this grant of 30 percent is the maximum rating permitted under DC 7319, the Board will consider whether a higher evaluation is permitted under DC 7332 regarding impairment of sphincter control. For a rating of 60 percent, there must be extensive leakage and fairly frequent involuntary bowel movements. For the period in question, occasional incontinence was reported but such severity of incontinence due to IBS is simply not shown. Final Considerations In considering whether the Veteran is entitled to a higher disability rating, the Board has also carefully considered his statements asserting that his disability is more severe than currently characterized. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to her through her senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Moreover, the Board acknowledges her belief that her symptoms are of such severity as to warrant a higher rating; however, disability ratings are made by the application of a schedule of ratings which is based on average impairment of earning capacity. Therefore, the Board finds the medical findings, which directly address the criteria under which the service-connected disability is evaluated, to be more probative than the Veteran's assessment of the severity of her IBS. The Board has additionally considered whether the Veteran is entitled to a greater level of compensation on an extra-schedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Accordingly, the Board will address the possibility of the assignment of an extraschedular rating for the increased disability rating at issue. Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, 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 claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's 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. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected IBS is inadequate. A comparison between the level of severity and symptomatology of the Veteran's IBS with the established criteria found in the rating schedule for digestive symptom disorders shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology. The Board further observes that, even if the available schedular evaluation for the disability is inadequate (which it manifestly is not), the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms." The record does not show that the Veteran has required frequent hospitalizations for her IBS. Further, the evidence does not show that her IBS has markedly interfered with her occupation. In short, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. Consequently, referral to the Under Secretary for Benefits or the Director, Compensation and Pension Service, under 38 C.F.R. § 3.321 is not warranted. ORDER An evaluation in excess of 10 percent for IBS for the period on appeal prior to January 19, 2008, is denied. An increased evaluation of 30 percent for IBS is granted for the period from January 19, 2008. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs