Citation Nr: 1310378 Decision Date: 03/27/13 Archive Date: 04/09/13 DOCKET NO. 07-37 097 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE 1. Entitlement to an initial evaluation in excess of 30 percent disabling for service-connected irritable bowel syndrome (IBS). 2. Entitlement to an extraschedular rating for IBS under the provisions of 38 C.F.R. § 3.321(b)(1). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD William Alan Nelson II, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1984 to April 1988 and from August 1990 to August 2006. This case comes before the Board of Veterans' Appeals (Board) on appeal from adverse rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board notes that the Veteran is a participant of the Benefits Delivery at Discharge (BDD) program. The purpose of the BDD program is to help ensure a smooth transition from military to civilian status by allowing service members to file pre-discharge claims for disability compensation with VA. The Board has reviewed both the Veteran's physical claims files and his "Virtual VA" file so as to insure a total review of the evidence. The procedural history of this case is complex, based on several claims filed at different stages in the appeal process. The procedural history of this case is as follows: In pertinent part, a November 2006 RO rating decision granted service connection for IBS and assigned an initial 10 percent rating effective September 1, 2006. The Veteran appealed the initial rating assigned. Because the Veteran disagreed with the initial rating assigned following the grant of service connection for IBS, the Board has characterized the issue as one of entitlement to a higher initial disability rating. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). A November 2007 RO rating decision awarded a 30 percent rating for IBS effective September 1, 2006. In March 2009, the Board issued a decision which, in part, denied a rating greater than 30 percent for IBS. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). On March 15, 2010, the Court remanded to the Board the issue of entitlement to a disability rating in excess of 30 percent for IBS pursuant to the terms of a Joint Motion for Remand (JMR); specifically, the Board was directed to discuss whether the Veteran was entitled to a referral for an extraschedular rating for his service-connected IBS. The Board remanded the issue of a higher initial rating for IBS in September 2010. The issue of a higher initial rating for IBS was again remanded by the Board in March 2012 for further procedural development of providing the Veteran with a supplemental statement of the case (SSOC). This was accomplished, and the claim was readjudicated in a February 2013 SSOC. For these reasons, the Board concludes that it may proceed with a decision at this time. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). At this juncture, the Board notes that the Veteran is currently receiving a 100 percent disability evaluation. However, as he has not withdrawn the issue on appeal, the Board must proceed with the adjudication of the claim. FINDINGS OF FACT 1. The Veteran's IBS is manifested by constipation, alternating diarrhea, occasional fecal incontinence necessitating the wearing of a pad, and abdominal bloating and cramping; the record is negative for extensive fecal incontinency or leakage, ulcerative colitis, or malnutrition. 2. The Veteran's IBS does not present an exceptional or unusual disability picture. CONCLUSIONS OF LAW 1. The schedular criteria for an initial rating in excess of 30 percent for IBS are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.114, Diagnostic Codes (DCs) 7319, 7323, 7332 (2012). 2. Application of the extraschedular rating provisions is not warranted in this case. 38 C.F.R. § 3.321(b) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2012). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. 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 required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2012). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2012). At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. Fenderson, 12 Vet. App. at 126. The Veteran seeks a rating in excess of 30 percent for IBS. Upon review of the lay and medical evidence of record, the Board is of the opinion that a higher rating is not warranted for the Veteran's service-connected IBS at any time since he filed his original claim for service connection. Irritable colon syndrome (spastic colitis, mucous colitis, etc.) that is severe with diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress, warrants a 30 percent rating. 38 C.F.R. § 4.114, DC 7319. This is the highest schedular rating available under that diagnostic code. Ulcerative colitis that is moderately severe with frequent exacerbations warrants a 30 percent rating. 38 C.F.R. § 4.114, DC 7323. Severe ulcerative colitis with numerous attacks a year and malnutrition and health that was only fair during remissions warrants a 60 percent rating. Id. Pronounced ulcerative colitis that resulted in marked malnutrition, anemia and general debility or with serious complications such as a liver abscess warrants a 100 percent rating. Id. Ratings under DCs 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348, inclusive, will not be combined with each other. A single evaluation will be assigned under the diagnostic code that reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114. In an October 2005 VA treatment record, the Veteran reported bowel urgency and a normal appetite. In a February 2006 VA treatment record, the Veteran reported IBS with fecal incontinence. In a June 2006 VA medical examination, the Veteran reported IBS since 1991. The VA examiner reported that the Veteran's IBS did not affect general body health or body weight; the VA examiner also reported no gastrointestinal symptoms, no malnutrition, and no anemia. In an August 2007 VA medical examination, the Veteran reported cramps and abdominal pain. The VA examiner reported stable weight and no rectal bleeding or melena; the diagnosis was IBS. In a November 2007 statement, the Veteran wrote that he had symptoms of IBS up to five times per day. In a February 2008 VA treatment record, the Veteran reported frequent rectal incontinence. In an April 2008 VA treatment record, the Veteran reported that sometimes he was able to control his bowels while anxious, but that it was "hit or miss." In a May 2008 VA treatment record, the Veteran reported occasional gastrointestinal stress. In a May 2008 VA treatment record, the Veteran reported that he was able to control his bowels during some anxiety attacks. In a July 2008 statement, the Veteran wrote that since separating from the military in August 2006, he had defecated in his clothing nineteen times. In a September 2008 VA general medical examination, the Veteran reported irritable bowel symptoms during anxiety attacks. The VA examiner reported no diarrhea or constipation and reported no leakage or drainage. The VA examiner further reported lower abdominal pain, but no melena, fistulas, or ulcerative colitis. The VA examiner opined that the Veteran defecated in his pants because of sever urgency, not because of incontinency. The VA examiner also opined that the Veteran's IBS had no effect on his occupation and that he had no hospitalizations or surgeries. In a November 2008 statement, the Veteran wrote that he wore Depends adult underwear and had defecated in his clothes on multiple occasions. In a separate November 2008 statement, the Veteran reported four or more "attacks" per day. In an October 2010 statement, the Veteran wrote that he wore Depends adult underwear and had defecated in his clothes once in the past week. In the November 2012 VA IBS examination, the Veteran reported wearing Depends adult underwear and experiencing stress related abdominal pain with fecal urgency and fecal incontinence. The VA examiner reported alternating diarrhea and constipation, nausea, and fecal urgency and incontinence. The VA examiner also reported bowel movements were usually formed, several times per day, and loose or watery stool occurred only about 10 percent of the time. The VA examiner reported no weight loss, malnutrition, or any other detrimental health effects related to the Veteran's IBS, providing highly probative evidence against this claim. The VA examiner opined that the IBS impacted the Veteran's ability to work with regard to fecal urgency and incontinence that caused the Veteran to adjust his lifestyle to remain close to a restroom. The Veteran's IBS is currently rated as 30 percent disabling, that is the highest schedular rating available for IBS under DC 7319. The criteria provide for the 30 rating when there are severe symptoms of diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. VA treatment records indicate that the Veteran does experience those specific severe symptoms, including diarrhea and constipation, during regular flare-ups of the disease. These symptoms are consistent with the 30 percent rating and such an evaluation appropriately describes the veteran's disability picture under DC 7319. 38 C.F.R. § 4.114. The Board also parenthetically observes that 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. A single evaluation will be assigned under the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. Id. The critical element in permitting the assignment of several ratings under various DCs is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). There is no alternate DC that would afford the Veteran a greater rating for his IBS. In general, the schedule of ratings for the digestive system, to include 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. Without adhesions of the peritoneum, anemia, malnutrition, and inability to gain weight, it simply cannot be said that complaints of diarrhea alone are sufficient to warrant a rating greater than 30 percent rating under DC 7301 (adhesions of peritoneum), DC 7308 (postgastrectomy syndromes), DC 7323 (ulcerative colitis), or DC 7328 (resection of the small intestine). Nor is there evidence of chronic weight loss, ulcers, hemorrhaging, ascites, or other problems that would warrant a greater rating under any other DC for the digestive system. Finally, DC 7332 provides ratings based on impairment of sphincter control. Healed or slight impairment of sphincter control, without leakage, is rated noncompensably (0 percent) disabling. Constant slight impairment of sphincter control, or occasional moderate leakage, is rated 10 percent disabling. Occasional involuntary bowel movements, necessitating wearing of pad, are rated 30 percent disabling. Extensive leakage and fairly frequent involuntary bowel movements are rated 60 percent disabling. Complete loss of sphincter control is rated 100 percent disabling. 38 C.F.R. § 4.114, DC 7332 (2012). In this case, the Veteran has reported intermittent problems with sphincter control. However, the evidence does not reflect that the Veteran experiences frequent involuntary bowel movements. In the June 2006 VA medical examination, the VA examiner reported no gastrointestinal symptoms due to the Veteran's IBS. In the August 2007 VA general medical examination, the Veteran reported anxiety attacks with the urge to have more than one stool, which occurred weekly. In the August 2007 VA PTSD examination, the Veteran reported some anxiety attacks at work, but stated that it did not affect his work performance. The Veteran reported that his anxiety attacks trigger a strong urge to defecate, but the Veteran did not report any incontinency or uncontrollable bowel movements and reported he had developed coping skills to deal with the urge to defecate. In a February 2008 VA treatment record, the Veteran reported frequent rectal incontinence; however, in an April 2008 VA treatment record, the Veteran reported that with breathing and relaxation exercises, he was able to control his bowels. In the September 2008 VA general medical examination, the VA examiner opined that the Veteran defecated in his pants because of severe urgency, not because of incontinency. In a November 2008 statement, the Veteran reported four or more "attacks" per day; however, in an October 2010 statement, the Veteran wrote that he had defecated in his clothes only once in the past week. Further, while the Veteran has reported occasional involuntary bowel movements and the use of Depends adult underwear, there is no evidence of record showing extensive fecal leakage. In the September 2008 VA general medical examination, the VA examiner reported no leakage or drainage. In the November 2012 VA IBS examination, the VA examiner reported loose or watery stool only about 10 percent of the time. Such disability would be contemplated by a 30 percent rating under this code. Therefore, a higher rating under DC 7332 is not warranted. As bowel disturbance is already contemplated by the 30 percent assigned herein, however, the Board finds that a separate rating under DC 7332 would violate the rule against pyramiding. In summary, based on the reasons and bases set forth above, the Board concludes that an increased rating in excess of 30 percent, is not warranted for the Veteran's service-connected IBS. 38 U.S.C.A. § 5107(b). Extraschedular Rating The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular 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). 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 first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran'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 evaluations for the service-connected IBS. A comparison between the level of severity and symptomatology of the Veteran's IBS with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. Specifically, the Veteran has daily incidents of diarrhea, abdominal cramping, gas, constipation, and occasional fecal incontinence that necessitates the use of a pad. His 30 percent rating assigned herein under DC 7319 fully compensates him for his symptomatology. Thus, the Veteran's current schedular rating is adequate to fully compensate him for his disability on appeal. With respect to the third prong of Thun, there is no evidence of marked interference with employment or frequent periods of hospitalization. In the August 2007 VA PTSD examination, the Veteran reported some anxiety attacks at work, but stated that it did not affect his work performance. In the September 2008 VA general medical examination, the VA examiner opined that the Veteran's IBS had no effect on his occupation and that he had no hospitalizations or surgeries. In an August 2009 VA Form 21-8940 (Application for Increased Compensation Based on Unemployability), the Veteran wrote that he worked full-time from May 2006 to August 2009. The Veteran reported missing only eight days of work from May 2006 to January 2008 (approximately one day per month) and twenty days of work between January 2008 and August 2009 (approximately one day per month). In a September 2010 VA Form 21-8940 (Application for Increased Compensation Based on Unemployability), the Veteran wrote that he worked full-time from October 2006 to July 2010. The Veteran reported missing only eight days of work from October 2006 to January 2008 (approximately one day per month), twenty days of work between January 2008 and August 2009 (approximately one day per month), and seven days of work from August 2009 to July 2010 (approximately one day per month). With regard to frequent periods of hospitalization, the September 2008 VA examiner reported that the Veteran had no hospitalizations or surgeries due to his service-connected IBS. In an August 2009 VA Form 21-8940 (Application for Increased Compensation Based on Unemployability), the Veteran wrote that he had not been hospitalized in the past year. In the September 2010 VA Form 21-8940 (Application for Increased Compensation Based on Unemployability), the Veteran wrote that he had not been hospitalized in the past year. Beyond this, the Veteran is already evaluated as 100% disabilities due to his service connected disabilities. In short, the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Concerning the issue of a higher initial rating for service-connected IBS, as this issue concerns the initial rating and comes before the Board on appeal from the decision which also granted service connection, following notice of disagreement with the initial rating, there can be no prejudice to the Veteran from any alleged failure to give adequate 38 U.S.C.A. § 5103(a) notice for the service connection claim. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement). The Board finds that all necessary development has been accomplished; therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A. VA has obtained VA and private treatment records and other records identified by the Veteran, including Social Security Administration (SSA) records. The Veteran has been afforded adequate examinations on the issue of a higher initial rating for service-connected IBS. VA provided the Veteran with examinations in August 2007, September 2008, and December 2012. Treatment records were reviewed, the Veteran's history was taken, and a complete examination with clinical measures was conducted. Conclusions reached and diagnoses given were consistent with the examination reports. For these reasons, the Board finds that the Veteran has been afforded adequate examinations on the issue of a higher initial rating for service-connected IBS. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Significantly, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER An initial rating in excess of 30 percent for IBS is denied. An extraschedular referral for IBS is not warranted. ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs