Citation Nr: 1308464	
Decision Date: 03/13/13    Archive Date: 03/20/13

DOCKET NO.  09-50 904	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia


THE ISSUES

1.  Entitlement to an initial rating in excess of 10 percent for the skin manifestations of Crohn's disease, including psoriasis. 

2.  Entitlement to an initial rating in excess of 10 percent for degenerative joint and degenerative disc disease of the lumbar spine. 

3.  Entitlement to a disability rating in excess of 60 percent for fistulous opening, perirectal region. 

4.  Entitlement to a disability rating in excess of 30 percent for Crohn's ileitis, status post resection. 

5.  Entitlement to service connection for fibromyalgia, to include as secondary to service-connected Crohn's ileitis. 

6.  Entitlement to service connection for headaches, to include as secondary to service-connected Crohn's ileitis. 

7.  Entitlement to Dependents' Educational Assistance under 38 U.S.C.A. Chapter 35. 

8.  Entitlement to service connection for diabetes mellitus with neuropathy, to include as secondary to service-connected Crohn's ileitis. 

9.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). 


REPRESENTATION

Veteran represented by:	Heather E. Vanhoose, Attorney


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

M. Donohue, Counsel


INTRODUCTION

The Veteran served on active duty from July 1987 to July 1991. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal of January 2009 and April 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. 

The Veteran testified at a hearing before the undersigned Veterans Law Judge at the Huntington RO in July 2012.  A transcript of the hearing has been associated with the Veteran's VA claims folder.

In a July 2010 rating decision, the RO denied the Veteran's claim for TDIU.  While the Veteran indicated his disagreement with this decision in November 2010, a statement of the case was not issued.  See Archbold v. Brown, 9 Vet. App. 124, 130 (1996) (pursuant to 38 U.S.C.A. § 7105(a), the filing of a notice of disagreement initiates appellate review in the VA administrative adjudication process, and the request for appellate review is completed by the claimant's filing of a substantive appeal after a statement of the case is issued by VA).

Although the Veteran was not provided with a statement of the case, the issue of entitlement to TDIU has been raised by the record and was discussed during the July 2012 hearing.  In Rice v. Shinseki, 22 Vet.App. 447 (2009), the U.S. Court of Appeals for Veterans Claims held that a claim for TDIU, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating.  In other words, the TDIU claim is part and parcel of the Veteran's increased rating claims. Thus, the issues on appeal are as stated on the title page above.  

The issue of entitlement to service connection for diabetes mellitus is addressed in the REMAND portion of the decision below and is REMANDED to the RO.


FINDINGS OF FACT

1.  At the July 2012 hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew his increased rating claims, his claims for service connection for fibromyalgia and headaches, and his claim for Dependents' Educational Assistance under 38 U.S.C. Chapter 35.

2.  The Veteran has been granted service connection for fistulous opening, perirectal region (60 percent disabling); Crohn's ileitis, status post resection (30 percent disabling); depressive disorder (30 percent disabling); degenerative joint and degenerative disc disease of the lumbar spine (10 percent disabling); and skin manifestations of Crohn's disease (10 percent disabling).  The combined evaluation for his service-connected disabilities is 80 percent.  

3.  The Veteran's service-connected disabilities have been shown to render him unemployable.


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of a substantive appeal with regard to the issue of entitlement to an initial rating in excess of 10 percent for the skin manifestations of Crohn's disease have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012).  

2.  The criteria for withdrawal of a substantive appeal with regard to the issue of entitlement to an initial rating in excess of 10 percent for degenerative joint and degenerative disc disease of the lumbar spine have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012).  

3.  The criteria for withdrawal of a substantive appeal with regard to the issue of entitlement to a disability rating in excess of 60 percent for fistulous opening, perirectal region have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012).  

4.  The criteria for withdrawal of a substantive appeal with regard to the issue of entitlement to a disability rating in excess of 30 percent for Crohn's ileitis, status post resection have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012).  

5.  The criteria for withdrawal of a substantive appeal with regard to the issue of entitlement to service connection for fibromyalgia have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012).  

6.  The criteria for withdrawal of a substantive appeal with regard to the issue of entitlement to service connection for headaches have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012).  

7.  The criteria for withdrawal of a substantive appeal with regard to the issue of entitlement Dependents' Educational Assistance under 38 U.S.C. Chapter 35 have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012).  

8.  Resolving reasonable doubt in favor of the Veteran, the criteria for entitlement to a TDIU have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.321, 4.16, 4.19 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

After the evidence has been assembled, the Board is responsible for evaluating the entire record.  38 U.S.C.A. § 7104(a) (West 2002).  When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012).  

Indeed, in Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  To deny a claim on its merits, the preponderance of the evidence must be against the claim.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

Furthermore, the Board notes that it has reviewed all of the evidence in the claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate the issues adjudicated herein and what the evidence in the claims file shows, or fails to show, with respect to these claims.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).  

I.  Withdrawn Claims

Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision or on the record at a hearing.  38 C.F.R. § 20.202 (2012).  Withdrawal may be made by the appellant or by his authorized representative.  38 C.F.R. § 20.204 (2012). 

During the July 2012 hearing, prior to the promulgation of a decision in the appeal, the Veteran's expressed a desire to withdraw from appellate review his increased rating claims, his claims for service connection for fibromyalgia and headaches, and his claim for Dependents' Educational Assistance under 38 U.S.C. Chapter 35. See Hearing Transcript at 1.  The hearing testimony of the Veteran and his representative was later reduced to writing and incorporated into the record in the form of a written transcript.  Therefore, the transcript of that hearing has been accepted as a withdrawal of these issues on appeal. See Tomlin v. Brown, 5 Vet. App. 355 (1993).  Hence, there remains no allegation of error of fact or law for appellate consideration with respect to these issues, and they are dismissed.


II. TDIU

	A. The Veterans Claims Assistance Act of 2000 (VCAA)

The Board has considered the provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012).  However, in the decision below, the Board has granted the Veteran's claim for TDIU, and therefore, the benefit sought on appeal has been granted in full.  Accordingly, without determining whether the duty to notify and to assist requirements have been met in this case, no harm or prejudice to the Veteran has resulted here. See, e.g., Bernard v. Brown, 4 Vet. App. 384   (1993); VAOPGCPREC 16-92. 


	B. Law and Regulations 

Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a).  VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 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, but not to his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. 

Under section 4.16(b) of VA regulations, when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), the RO may submit such case to the Director, Compensation and Pension Service, for extraschedular consideration. 38 C.F.R. § 4.16(b).  The Board is precluded from granting a total rating under section 4.16(b) because the authority to grant such a rating is vested specifically in the Director, Compensation and Pension Service.  Should the Board find that a case it is reviewing on appeal is worthy of consideration under section 4.16(b), the Board may remand the case to the RO for referral to the Director, Compensation and Pension Service, but the Board may not grant a total rating in the first instance. See Floyd v. Brown, 9 Vet. App. 88, 95 (1996) (noting that Board may consider whether referral to "appropriate first-line officials" for extra-schedular rating is required); see also Bagwell v. Brown, 9 Vet. App. 337, 339 (1996).  Thus, the decision by the RO whether to refer a case to the Director for extra-schedular consideration is an adjudicative decision subject to review by the Board and the United States Court of Appeals for Veterans Claims (Court). 

For a veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places the claimant in a different position than other veterans with the same disability rating.  The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough.  A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment.  The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).  Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). 


	C. Analysis

The Veteran has been granted service connection for fistulous opening, perirectal region (60 percent disabling); Crohn's ileitis, status post resection (30 percent disabling); depressive disorder (30 percent disabling); degenerative joint and degenerative disc disease of the lumbar spine (10 percent disabling); and skin manifestations of Crohn's disease (10 percent disabling).  The combined evaluation for his service-connected disabilities is 80 percent.  Hence, the Veteran has satisfied the schedular criteria for a TDIU rating. 

In October 2010, the Veteran reported that he had completed one year of college. See an October 2010 VA Form 21-8940.  Upon review, the record reflects that the Veteran studied architectural drafting at a state college for two semesters before joining the Army.  See an October 2008 private mental status examination report. 

Following his separation from service, the Veteran worked for a property protection company installing commercial sprinkler systems, as an assistant manager of a paint store, and for the United States Postal Service from 1992 to 2008 where he performed maintenance work.  See the October 2008 private mental status examination report; see also the October 2010 VA Form 21-8940.

The Veteran was afforded a VA examination in February 2011. After reviewing the claims folder and conducting a physical examination, the VA examiner stated that the Veteran should be able to secure sedentary employment because his abdominal pain and service-connected back condition are too mild to render him inactive and unemployable. 

While cognizant that the February 2011 VA examiner stated that he reviewed the Veteran's claims folder, the findings contained in the examination report are not consistent with those contained in the claims folder.  Specifically, the examiner stated that the Veteran did not have a history of bowel obstruction or constipation.  However, a December 2010 private treatment record noted that the Veteran has experienced recurrent bowel obstructions due to his Crohn's disease that have caused him to be hospitalized eight times in two years.  

Moreover, the February 2011 VA examiner's finding that the Veteran experiences diarrhea less than weekly and has an anal fistula that results in fecal discharge less than 12 times per year, is contradicted by findings contained in the Veteran's Social Security Administration (SSA) records.

Specifically, in a March 2010 decision, SSA found that the Veteran is unable to engage in any substantial gainful activity by reason of a physical or mental impairment.  In rendering this decision, SSA observed that the Veteran experiences 12 to 14 bowel movements daily, sometimes lasting 15 minutes. It was noted that his Crohn's disease resulted in "severe pain, cramping, anal fistula and bowel leakage" with symptoms that occur every day.  While cognizant that the Veteran's records from the SSA include a September 2008 Physical Residual Functional Capacity Assessment wherein C.W., M.D., stated that the Veteran's Crohn's disease is stable and his allegations are not credible because the alleged symptoms are disproportionate to the evidence contained in his file, an identical assessment conducted in February 2009 revealed that that the Veteran's allegations are mostly true during the acute phase of his disease.

The Veteran was also afforded multiple VA examinations in October 2009.  Specifically, a clinical psychologist conducted a VA psychiatric examination, and a VA physician conducted separate examinations for spine disorders, skin disorders, fibromyalgia, neurological disorders, and joint disabilities.  Following a clinical evaluation, both VA examiners rendered opinions as to the impact, if any, that the Veteran's disabilities would have on his employment.  Upon review, however, the October 2009 VA examiners did not take into consideration all of the Veteran's service-connected disabilities, but only provided opinions that addressed each disability in isolation.  Accordingly, the examiners' opinions are of limited probative value. 

In his March 2008 claim, the Veteran reported that he missed over 500 hours of work during the past year due to his Crohn's disease.  This is consistent with the findings of a May 2008 VA intestines examination which reported that the Veteran's Crohn's disease had "significant effects" on the Veteran's occupation by increasing his absenteeism.  It was specifically noted that the Veteran had missed 20 weeks of work due to "abdominal pain, diarrhea, doctor[] appointments, and hospitalizations." 

In an April 2008 VA gastroenterology treatment record, the Veteran is described as having between six and eight bowel movements daily.  It was noted that he was experiencing symptoms of a bowel obstruction and had vomited during the prior week.  An addendum to this treatment report notes that the Veteran was subsequently hospitalized with a small bowel obstruction. 

The Veteran was also afforded a VA rectum examination in December 2008.  Following a review of the Veteran's claims folder and a physical examination, the VA examiner indicated that the service-connected fistula resulted in itching, burning, diarrhea, pain, tenesmus and swelling.  It was noted that the Veteran had a history of hemorrhoids, frequent involuntary bowel movements, and frequent perianal discharge.  The examiner stated that, because of frequent fecal drainage, the Veteran could not embark on shopping trips, exercise, or participate in sports.  It was also noted that when travelling "he has to plan his routes so that he knows where there will be public facilities and has to bring necessary supplies of pads and gauze when en route." 

In support of his claim, the Veteran submitted an August 2010 letter from J.M.D., M.D (initials used to protect privacy), who stated that due to the Veteran's bowel problems, "including pain and irregularity, his depression, and the psoriasis, he is more likely than not unemployable." 

The Veteran has also submitted an April 2008 statement from his private healthcare provider, T.G.H., M.D.  In this statement, Dr. T.G.H. reported that he had been treating the Veteran for his Crohn's disease and the Veteran "is having increasing difficulty [performing] his usual work tasks.  He frequently has severe crampy abdominal pain [and] episodes of diarrhea."  It was further noted that the Veteran could not continue to perform maintenance work for the United States Postal Service because of his abdominal pain, nausea, vomiting, and having to constantly run to the bathroom with diarrhea. 

During the July 2012 hearing, the Veteran testified that that he would have to use the bathroom "anywhere from seven [to] ten times a day" when he was working. See the Hearing Transcript, page 7.  He reported that that these bathroom breaks would take anywhere from 5 minutes to 25 minutes because of the cramping and nausea. Id. at 9. He also reported that he had experienced accidents due to the urgency and involuntary nature of his bowel movements. Id. 

Based on the foregoing, there appears to be reasonable doubt as to whether the Veteran is unemployable due to his service-connected disabilities.  To the extent that there is any reasonable doubt, that doubt will be resolved in the Veteran's favor. Therefore, the Board finds that the Veteran is unemployable due to his service-connected disabilities. Accordingly, the Board concludes that TDIU is warranted. 


ORDER

The claim for an initial rating in excess of 10 percent for the skin manifestations of Crohn's disease, including psoriasis, is dismissed.  

The claim for an initial rating in excess of 10 percent for degenerative joint and degenerative disc disease of the lumbar spine is dismissed. 

The claim for a disability rating in excess of 60 percent for fistulous opening, perirectal region is dismissed. 

The claim for a disability rating in excess of 30 percent for Crohn's ileitis, status post resection is dismissed. 

The claim for service connection for fibromyalgia is dismissed. 

The claim for service connection for headaches is dismissed. 

The claim for Dependents' Educational Assistance under 38 U.S.C. Chapter 35 is dismissed. 

Entitlement to TDIU rating is granted, subject to the regulations governing the award of VA monetary benefits.


REMAND

For the following reasons, the Board finds that the Veteran's claim of entitlement to service connection for diabetes mellitus must be remanded to ensure that he is accorded full compliance with the statutory duty to assist.

As an initial matter, the Board notes that the Veteran has not contended that his currently diagnosed diabetes mellitus is directly due to his military service.  Instead, he argues that his disability is due to his service-connected Crohn's disease.  See the Hearing Transcript, page 6.

Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a).  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).  

Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47   (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet.App. 292, 297 (1991). 

The Veteran was afforded a VA examination to determine the etiology of his diabetes mellitus in June 2010.  After reviewing the Veteran's claims file and conducting a physical examination, the VA examiner stated that the Veteran's disability "is not due to the service-connected Crohn's disease or treatment for his Crohn's disease."  In explaining his opinion, the examiner stated that the medication the Veteran is currently taking can produce elevations in blood sugars in individuals who already have underlying diabetes mellitus or pre-diabetes, but the medications themselves do not produce diabetes mellitus. 

While the June 2010 VA examiner indicated that the Veteran's Crohn's disease had not caused his diabetes mellitus, the examiner did not provide an opinion as to whether the service-connected Crohn's disease, to include the medication for its treatment, may have aggravated his diabetes mellitus.  Therefore, the Board finds that a clarifying medical opinion is necessary.  

The record also indicates that the Veteran has been receiving ongoing VA treatment from the VA Medical Center (VAMC) in Huntington, West Virginia.  On remand, the Veteran's treatment records should be obtained and associated with his claims folder. 38 U.S.C.A. § 5103A(c) (West 2002). See also Bell v. Derwinski, 2 Vet.App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent).

Finally, following the August 2010 supplemental statement of the case, additional VA treatment records were associated with the Veteran's electronic claims folder. This evidence has not been considered by the RO, and no waiver of initial RO consideration is currently of record.  See 38 C.F.R. § 1304 (2012).  Without a written waiver of initial RO consideration of the additional records, this issue must be returned to the agency of original jurisdiction for readjudication.  See Disabled American Veterans v. Principi, 327 F.3d 1339 (Fed. Cir. 2003) (VA regulation allowing the Board to consider additional evidence without remanding case to the agency of original jurisdiction for initial consideration was invalid); see also Bernard v. Brown, 4 Vet.App. 384 (1993).

Accordingly, the case is REMANDED for the following action:

1. The RO should take appropriate steps to contact the Veteran and ask that he identify the names and addresses of all VA and non-VA health care providers who have treated him for diabetes mellitus.  After procuring authorization from the Veteran for release of all identified records, as appropriate, the RO should obtain copies of all such records. 

The RO should also obtain any ongoing treatment records from the VAMC in Huntington, West Virginia.

All efforts to obtain such records should be documented in the claims folder, and all available records should be associated with the claims folder.

2.  After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any diabetes mellitus that may be present.  Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed.  The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. 

The examiner should comment as to whether it is at least as likely as not that that the Veteran currently has diabetes mellitus that is either caused by or permanently aggravated by his service-connected Crohn's disease. 

(The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) 

A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.  Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review.

3.  When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence, to include the evidence contained in the Veteran's electronic claims folder.  If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board 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. 2012).



______________________________________________
JESSICA J. WILLS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs