Citation Nr: 1302256 Decision Date: 01/22/13 Archive Date: 01/31/13 DOCKET NO. 09-32 262A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES Entitlement to an increased disability rating for ulcerative colitis with residual headaches in excess of 60 percent for the period from May 17, 2007 to October 1, 2007, and 30 percent therefrom. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from January 1997 to May 2002. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, that continued a 30 percent disability rating assigned to the Veteran's service-connected ulcerative colitis. The Veteran appealed this rating action to the Board. Thereafter, in January 2009, the RO assigned an increased disability rating of 60 percent to the Veteran's service-connected ulcerative colitis with residual headaches, effective May 17, 2007. A 30 percent disability rating was assigned, effective from October 1, 2007. Such action is considered as staged rating. In June 2010, the Veteran and his spouse testified before a Decision Review Officer (DRO) at the above-cited RO. A copy of the hearing transcript has been associated with the claims file. FINDINGS OF FACT 1. For the period from May 17, to October 1, 2007, the Veteran's service-connected ulcerative colitis was manifested by severe symptoms of bloody diarrhea, abdominal bloating, loss of weight that was controlled with oral Prednisone and enemas; however, pronounced symptoms of marked malnutrition, anemia, and general debility or serious complications such as liver abscess were not demonstrated. 2. For the period from October 1, 2007 to the present, the Veteran's service-connected ulcerative colitis was manifested by moderately severe symptoms of diarrhea two times a day; however, severe ulcerative colitis manifested by numerous attacks a year and malnutrition, and with the health only fair during remissions has not been demonstrated. CONCLUSIONS OF LAW 1. For the period from May 17, to October 1, 2007, the schedular criteria for an increased disability rating in excess of 60 percent for ulcerative colitis have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 4.114, Diagnostic Code 7323 (2012). 2. For the period from October 1, 2007, the schedular criteria for an increased disability rating in excess of 30 percent for ulcerative colitis have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 4.114, Diagnostic Code 7323 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Before addressing the merits of the issue, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letter dated in September 2007 of how VA determines disability ratings and effective dates, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. This letter accordingly addressed all notice elements and predated the initial adjudication by the AOJ/RO in January 2008. Nothing more was required. It follows that the November 2008 letter readdressing the notice element of how VA determines disability ratings, to include the criteria for evaluating ulcerative colitis, went above and beyond what was necessary. The Board also notes that the Veteran has actively participated in the processing of his case, and the statements submitted in support of his claim, to include from his accredited representative, have indicated familiarity with the requirements for the benefits sought on appeal. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (VA can demonstrate that a notice defect is not prejudicial if it can be demonstrated ... that any defect in notice was cured by actual knowledge on the part of the appellant that certain evidence (i.e., the missing information or evidence needed to substantiate the claim) was required and that the appellant should have provided it.); see also Overton v. Nicholson, 20 Vet. App. 427 (2006). The Board also finds that the duty to assist the Veteran in the development of his claim has been satisfied. The Veteran's service treatment records are on file, as are identified post-service VA treatment records. Further, in September 2007 and May 2009,VA examined the Veteran to determine the current severity of his service-connected ulcerative colitis. These examination reports considered the Veteran's personal complaint and lay history and included findings as to the symptomatology of his service-connected ulcerative colitis that are consistent with the treatment records and relevant rating criteria. Accordingly, the Board finds that these examinations are adequate for resolution of this case. Recognition is given to the fact that the report of the Veteran's ulcerative colitis examination is now in excess of three years old. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted. VAOPGCPREC 11-95. Here, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's disability since the May 2009 VA examination. The Veteran does not contend otherwise. Some discussion of the Veteran's June 2010 DRO hearing is necessary. The individual presiding over a hearing must comply with the duties set forth in 38 C.F.R. § 3.103(c)(2). Bryant v. Shinseki, 23 Vet. App. 488 (2010). These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. They were met here. The issue on appeal was identified at the hearing. It was explained in that information was elicited from the Veteran and his wife concerning the present symptoms of his ulcerative colitis as well as the symptoms he experienced for the period from May to October 2007. The effect that his ulcerative colitis had on his ability to work was discussed in detail. Consequently, the Board finds that the duty to assist the Veteran has been satisfied in this case. The Veteran has had the opportunity to present evidence and argument in support of his claim, and nothing indicates he has identified the existence of any relevant evidence that has not been obtained or requested. He has not demonstrated there is outstanding evidence documenting symptoms of his service-connected ulcerative colitis that is not demonstrated by the evidence already of record. Consequently, the Board finds that the duty to assist the Veteran has been satisfied in this case. II. Legal Criteria Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1 (2012). Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2012); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2012); where there is a question as to which of two evaluations applies, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2012); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (2012). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that the rule from Francisco does not apply where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability. Rather, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. More recently, the Court held that "staged" ratings are appropriate for an increased rating claim, such as here, when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). With regard to the Veteran's request for an increased schedular evaluation, the Board will only consider the factors as enumerated in the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992). The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that 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). III. Legal Analysis Service connection for ulcerative colitis was granted in August 2002. A 30 percent rating was assigned. That rating remained in effect until the Veteran filed a claim for an increased rating in August 2007. At that time, he indicated that he had experienced a period of prolonged exacerbation of his ulcerative colitis. The claim for increased was initially denied in a January 2008 decision. Then, in January 2009, the RO assigned an increased disability rating of 60 percent to the Veteran's service-connected ulcerative colitis with residual headaches, effective May 17, 2007, which was the date of a VA treatment report reflecting that he had experienced a flare-up of this disability and prior to when he filed his claim for an increased rating in August 2007. A 30 percent disability rating was assigned, effective from October 1, 2007, which was the date the Veteran returned to employment. The Veteran seeks an increased disability rating in excess of 60 percent for his ulcerative colitis for the period from May 17, to October 1, 2007, and 30 percent therefrom. He specifically maintains that for the period from May 17, to October 1, 2007, he should be awarded a 100 percent schedular rating because he was unable to work during this time. (See VA Form 21-4138, Statement in Support of Claim, dated and signed by the Veteran in March 2009, and Veteran's typed letter to VA, received by the RO in May 2009). Under this diagnostic code, a 30 percent evaluation is assigned for moderately severe ulcerative colitis with frequent exacerbations. A 60 percent evaluation is assigned for severe ulcerative colitis with numerous attacks a year and malnutrition, and with the health only fair during remissions. A 100 percent evaluation is assigned for pronounced ulcerative colitis, resulting in marked malnutrition, anemia, and general debility, or with some serious complication as liver abscess. 38 C.F.R. § 4.114, Diagnostic Code 7323. (i) Period From May 17, to October 1, 2007 The Board finds that the preponderance of the evidence of record is against an increased disability rating in excess of 60 percent for the Veteran's ulcerative colitis for the period from May 17, to October 1, 2007. Despite the severe symptoms that he experienced at that time, the evidence of record does not show that the Veteran's ulcerative colitis resulted in marked malnutrition, anemia, and general debility, or with serious complications, such as a liver abscess, during the prescribed period. The Veteran has argued that he missed work from June to August 2007 due to a flare-up of his ulcerative colitis, thus, a 100 percent scheduler rating is warranted for this time period. VA treatment and examination reports reflect that the Veteran experienced a flare-up of his ulcerative colitis in mid-May and early June 2007 that was associated with bloody diarrhea with mucus eight (8) times a day, bloating, and crampy abdominal pain. He is also shown to have had a decreased appetite that resulted in a 17 pound weight loss (i.e., the Veteran went from 202 to 185 pounds). He was prescribed oral Prednisone and steroid enemas to help control his symptoms. See VA treatment records, dated May 17, 2007 and early June 2007. By August 2007, the Veteran's ulcerative colitis was noted to have returned to baseline. He related that he had one (1) to two (2) stools per day that were not associated with any blood. He denied having any abdominal cramping or weight loss, and stated that his appetite had improved. When seen at the VA clinic in mid-September 2007, the Veteran stated that he only had mild bloating and cramping (italics added for emphasis) and no bloody stools or weight loss (See VA treatment report, dated in mid-September 2007). A September 2007 VA examination report reflects that the Veteran had experienced a flare-up of his ulcerative colitis the previous June of that calendar year that had resulted in flatulence, abdominal distention, crampy abdominal pain, vomiting, and eight (8) diarrhea-type bowel movements a day. The Veteran reported that his symptoms had improved (i.e., two (2) pain-free bowel movements a day)) with the use of Prednisone and mesalamine enemas. The VA examiner noted that the Veteran had ulcerative colitis of the total colon that was in remission and was manifested by two (2) formed bowel movements a day. (See September 2007 VA Rectum and Anus examination report). During his hearing at the RO, the Veteran testified that his health had progressively improved to the point where he returned to his position in food preparation at a fast food restaurant in October 2007. (Transcript (T.) at pg. 9)). In sum, a rating in excess of 60 percent is not warranted because the preponderance of the competent and probative evidence of record does not show symptoms consistent with pronounced ulcerative colitis during the period from May 17, to October 1, 2007. Specifically, while the Veteran experienced a flare-up of his ulcerative colitis in mid-May and early June 2007 that was associated with bloody diarrhea eight (8) times a day, vomiting, abdominal bloating, and weight loss, marked malnutrition, anemia, and general debility or serious complications, such as a liver abscess, were not shown. It is true that the Veteran experienced weigh loss of approximately 15 pounds during this period. There is little doubt that this weight loss represented severe symptomatology. However, the fact remains that there is no indication that he experienced marked malnutrition, anemia, or complications such as liver abscess. There is also no demonstration of general debility. Although the Veteran and his wife say he experienced debilitation during this period, and it shown that he did not work at that time, his treating physician described the Veteran as recovering from a flare up of his ulcerative colitis and needing chronic therapy. A description of general debility was not provided. Moreover, the record shows that the Veteran's symptoms returned to baseline with the aid of oral medications and enemas by August 2007. In fact, while the Veteran testified that he was unable to work from June to August 2007 because of his ulcerative colitis, an August 2007 VA treatment report reflects that his symptoms had returned to baseline with the aid of oral medications and enemas. The Veteran stated that he had three (3) to four (4) formed, non-bloody stools a day and that his appetite had improved. His symptoms had improved to the point where the Veteran had tapered himself off his steroid in one week due to (the Veteran testified that his symptoms had progressed to the point where he returned to work in food preparation at a local fast food restaurant in early October 2007. For these reasons, an increased disability rating in excess of 60 percent for the service-connected ulcerative colitis for the period from May 17, to October 1, 2007 is not warranted under Diagnostic Code 7323. Reviewing the evidence, the Board finds that the overall disability picture for the Veteran's ulcerative colitis does not more closely approximate a 100 percent rating and that the preponderance of the evidence is against a disability rating greater than 60 percent for the period from May 17, to October 1, 2007. 38 C.F.R. §§ 4.3, 4.114, Diagnostic Code 7323. The benefit-of-the-doubt doctrine is not for application and an increased rating in excess of 60 percent for ulcerative colitis for the period from May 17, to October 1, 2007 must be denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (ii) Period from October 1, 2007 to the present The Board finds that the preponderance of the evidence of record is against an increased rating in excess of 30 percent for the period from October 1, 2007 to the present. The evidence of record does not show symptoms that are consistent with severe colitis with numerous attacks a year and malnutrition, with only fair health during remissions. Specifically, VA treatment records show that the Veteran was in good health and that his ulcerative colitis had returned to baseline. A December 2007 VA treatment report reflects that the Veteran had one (1) to two (2) non-bloody bowel movements a day. He denied having any cramps or associated weight loss. He was prescribed oral medication to help control his symptoms. A January 2009 VA Intestine examination report reflects that the Veteran reported having normal bowel movements with formed stool. He denied having any rectal bleeding and abdominal pain. The VA examiner described the Veteran's weight as stable. When examined by VA in May 2009, the Veteran denied having any flare-ups of his ulcerative colitis since the calendar year 2007. He denied any diagnosis of anemia secondary to his ulcerative colitis, as well as any unexplained weight changes during the previous year. He denied having symptoms associated with his ulcerative colitis that restricted his usual activities. A physical evaluation of the Veteran reflects that he was well-nourished and well-developed. His weight was 196 pounds. A physical evaluation of the Veteran's abdomen revealed that it was non-tender and without masses. The examiner diagnosed the Veteran with ulcerative colitis by history. See May 2009 VA examination report. Overall, the preponderance of the competent and probative evidence of record during the period from October 1, 2007 to the present shows that the Veteran's ulcerative colitis had returned to baseline after a June 2007 flare-up and that his weight had remained consistent without any evidence of anemia. In fact, his condition had improved to the point where a May 2009 VA examiner diagnosed him with ulcerative colitis by history (italics added for emphasis) as opposed to being active. For these reasons, an evaluation higher than 30 percent is not warranted for the period from October 1, 2007 to the present under Diagnostic Code 7323. Regarding all periods on appeal, in considering whether the Veteran is entitled to a higher disability rating, the Board has also carefully considered his statements, and those of his wife and friends, 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). The Veteran is competent to report his symptoms, and the Board does not doubt the sincerity of the Veteran's belief, as well as those of his family and friends, that his service-connected ulcerative colitis was more severely disabling than the currently assigned 60 and 30 percent disability ratings for the prescribed periods on appeal. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). His wife and friends have a similar level of competency based on what they can observe. However, the determination of malnutrition, anemia, debility, and complications such as liver abscess requires a level of medical expertise that none of these individuals are shown to possess. The objective clinical findings during these periods simply do not support his assertions for the reasons stated above and clearly provide evidence against higher evaluations in excess of 60 and 30 percent for the period from May 17, to October 1,2007 and from October 1, 2007 to the present, respectively. Put another way, 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 lay assessment, as well as those of his family and friends, of the severity of his ulcerative colitis. For all the foregoing reasons, the Veteran's claims for entitlement to an increased disability rating in excess of 60 percent for ulcerative colitis for the period from May 17, to October 2, 2007, and an increased disability rating in excess of 30 percent for the period from October 1, 2007 must be denied. Both medical and lay evidence fail to support the assignment of higher ratings. The Board has considered additional staged ratings under Hart v. Mansfield, 21 Vet. App. 505 (2007), but concludes that they are not warranted. Since the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has also considered whether referral for an extraschedular evaluation is warranted. The question of an extraschedular rating is a component of a claim for an increased rating. 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). The Court has clarified the analytical steps necessary to determine whether referral for such consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology. If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. In this case, the evidence does not indicate that Veteran's disability picture could not be adequately contemplated by the applicable schedular rating criteria discussed above. The symptoms of the Veteran's ulcerative colitis were applied to the applicable rating criteria, general counsel opinions, and case law . Although the diagnostic codes in this case allow for higher ratings, the Board fully explained why the higher ratings were not warranted. Further, notwithstanding the finding that the applicable schedular rating criteria are more than adequate in this case, the Board observes that the Veteran did not experience frequent hospitalizations. It is true that he appears to have taken a period of absence from work due to his ulcerative colitis. However, the 60 percent rating that was assigned for that period, contemplates severe ulcerative colitis with numerous attacks a year and malnutrition and only "fair" health. Consideration as to whether the Veteran's disability picture includes exceptional factors is not needed, and referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Finally, the Board has considered whether this appeal raises a claim of entitlement to a total disability evaluation based upon individual unemployability due to service-connected disability (TDIU). See Rice v. Shinseki, 22 Vet. App. 447 (2009). By an unappealed June 2009 rating action, the RO denied, in part, the Veteran's claim of entitlement to TDIU. In an April 2010 statement to the RO and during his June 2010 RO hearing, the Veteran indicated that he was not seeking entitlement to TDIU but rather a 100 percent schedular rating for his ulcerative colitis during the period from June to August 2007. (See VA Form 21-4138, Statement in Support of Claim, dated and signed by the Veteran in April 2010 and T. at pg. 13)). Entitlement to a temporary 100 percent rating based on convalescence was denied in July 2010. Parenthetically, the Board observes that the RO mistakenly indicated in a July 2010 Supplemental Statement of the Case that the schedular criteria for TDIU had been met for the period from May 17, to October 1, 2007. (See July 2010 SSOC, pg. 6). However, an October 2011 rating decision clearly reflects that the Veteran's claim for TDIU had been denied and that the schedular criteria for TDIU had not been met at any time during the appeal period. 38 C.F.R. § 4.16 (2012). ORDER An increased disability rating in excess of 60 percent for ulcerative colitis for the period from May 17, to October 1, 2007, and 30 percent therefrom is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs