Citation Nr: 1318945 Decision Date: 06/11/13 Archive Date: 06/21/13 DOCKET NO. 08-06 448 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to a higher initial rating for irritable bowel syndrome rated at zero percent for the period prior to August 1, 2011 and at 10 percent for the period from August 1, 2011. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and Spouse ATTORNEY FOR THE BOARD A. Haddock, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1982 to February 2003. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision by the Winston-Salem, North Carolina Department of Veterans Affairs (VA) Regional Office (RO). In September 2010, the Veteran appeared and provided testimony at a Board hearing before the undersigned Acting Veterans Law Judge. A transcript of that hearing is associated with claims file. This matter was previously remanded by the Board for further development in June 2011. The Board finds that the agency of original jurisdiction substantially complied with the mandates of the June 2011 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (finding that a remand by the Board confers on the appellant the right to compliance with the remand orders). Following the completion of the requested development, the RO issued an April 2012 rating decision granting the Veteran a 10 percent disability rating for his irritable bowel syndrome effective August 1, 2011. The Veteran has not indicated that he is satisfied with the disability rating assigned in the April 2012 rating decision, and the matter is therefore still on appeal. Additionally, on appeal at the time of the June 2011 Board remand was the issue of entitlement to service connection for a left knee disability. However, the Board notes that the April 2012 rating decision granted the Veteran service connection for his left knee disability, and as the Veteran has not filed a notice of disagreement with that decision, the April 2012 rating decision is considered a full grant of the benefit sought on appeal and the issue of entitlement to service connection for a left knee disability is no longer before the Board. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. FINDING OF FACT For the entire appeal period, the service-connected irritable bowel syndrome is manifested by diarrhea or alternating diarrhea and constipation with more or less constant abdominal distress. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for entitlement to a 30 percent rating for the irritable bowel syndrome are met for the entire appeal period. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.20, 4.114, Diagnostic Code 7319 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and 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. Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: (1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and (2) the appeal is re-adjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Here, the VCAA duty to notify was satisfied by way of a letters sent to the Veteran in July 2005, May 2006, and June 2006 letters. These letters fully addressed all notice elements and was sent prior to the initial RO decision in these matters. The July 2005 and June 2006 letters informed the Veteran of what evidence was required to substantiate his claims and of his and VA's respective duties for obtaining evidence. The May 2006 and June 2006 letters also informed the Veteran how disability ratings and effective dates were established. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The Board finds that all necessary development has been accomplished and therefore appellate review of the claims addressed above may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained pertinent VA treatment records and the Veteran was afforded VA medical examinations in August 2006 and August 2011. Significantly, neither the Veteran nor his representative has 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 his 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). Regarding VA's duties set forth in Bryant v. Shinseki, 23 Vet. App. 488 (2010) and 38 C.F.R. 3.103(c) (2) (2012), the Veteran's testimony at the Central Office hearing in September 2010 focused on the elements necessary to substantiate the Veteran's claim for an increase and demonstrated, along with the representative's statements, that he had actual knowledge of the elements necessary to substantiate the claim. Consistent with Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Acting Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c) (2) and now can adjudicate the claim based on the current record. II. Legal Criteria and Analysis Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Governing regulations include 38 C.F.R. §§ 4.1 and 4.2, which require the evaluation of the complete medical history of the veteran's condition. 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. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In a claim for a higher original rating after an initial award of service connection, all of the evidence submitted in support of the Veteran's claim is to be considered. In initial rating cases, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. There are diseases of the digestive system, particularly within the abdomen, which, while differing in the site of pathology, produce a common disability picture characterized in the main by varying degrees of abdominal distress or pain, anemia and disturbances in nutrition. Consequently, certain coexisting diseases in this area, do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding as outlined in 38 C.F.R. § 4.14. 38 C.F.R. § 4.113. Ratings under diagnostic codes 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 which 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. When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. The Board notes that there are no diagnostic codes that specifically list irritable bowel syndrome. However, the symptoms of irritable bowel syndrome are best contemplated by Diagnostic Code 7319, used for evaluating irritable colon syndrome. Currently the Veteran's irritable bowel syndrome is rated under 38 C.F.R. § 4.114, Diagnostic Code 7319, which provides that a noncompensable disability rating is warranted for mild irritable colon syndrome with disturbances of bowel function with occasional episodes of abdominal distress. A 10 percent disability rating is warranted for moderate irritable colon syndrome with frequent episodes of bowel disturbances with abdominal distress. A maximum 30 percent disability rating is warranted for severe irritable colon syndrome productive of diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. 38 C.F.R. § 4.114, Diagnostic Code 7319. Words such as "moderate" and "severe" are not defined in the VA Schedule for Rating Disabilities. The Board observes in passing that "moderate" is defined as "of average or medium quality, amount, scope, range, etc." See Webster's New World Dictionary, Third College Edition (1988) 871. Although the word "severe" is not defined in VA regulations, "severe" is generally defined as "of a great degree: serious." See Webster's Ninth New Collegiate Dictionary (1990) 1078. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.114. Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. See 38 C.F.R. §§ 4.2, 4.6. The Board must analyze the credibility and probative value of the evidence, account for the persuasiveness of the evidence, and provide reasons for rejecting any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence; therefore, the veteran prevails in his claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against a veteran's claim that the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran was afforded a VA examination in August 2006. At that time he reported he began having diarrhea symptoms while deployed in Iraq while on active service. He reported the diarrhea was severe and lasted approximately 5 days, and he then began having intermittent episodes of diarrhea that lasted for several days. He reported that since active service, he experienced symptoms of diarrhea every 3 months, which would last for 2 to 3 days. He reported that he would take Pepto Bismol and Imodium AD as treatment, and that the medication brought his symptoms under control. He did not report any pain or bleeding. The examiner diagnosed irritable bowel syndrome with paroxysmal diarrhea. At his September 2010 Board hearing, the Veteran testified that his irritable bowel syndrome caused frequent diarrhea and abdominal distress. He testified that his symptoms were daily and ongoing. The Veteran's spouse also testified at the September 2010 Board hearing, and she stated that she has observed the Veteran's irritable bowel syndrome symptoms since he returned from his deployment in Afghanistan while on active service, and that the symptoms had gotten progressively worse since that time. She testified that he experienced episodes of diarrhea on a daily basis. Based on his hearing testimony, the Veteran was afforded another VA examination in August 2011. At that time he reported experiencing symptoms of cramping, diarrhea, and occasional constipation while on active service. He reported that since separation from active service his irritable bowel syndrome symptoms had worsened and he had been prescribed Bentyl by a gastrointestinal specialist in 2010, which had provided minimal relief. He reported undergoing a colonoscopy in 2005, which revealed one colon polyp. He reported that he was scheduled for another colonoscopy in August 2011 related to his continued complaints of abdominal discomfort, cramping, diarrhea, bloating, and intermittent constipation. He reported experiencing mild discomfort at the time of examination, with cramping and occasional diarrhea. He denied constipation, weight loss, and bloody/tarry stools. He reported his symptoms were aggravated by greasy, fried foods and relieved by Bentyl. He reported a history of monthly constipation and weekly, persistent diarrhea. He reported a history of intestinal pain in the epigastric area that occurred several times a week and would last for several minutes at a time. He reported that this pain was severe, colicky, and cramping in nature. After examination, the examiner diagnosed mild irritable bowel syndrome. The examiner noted that the Veteran's irritable bowel syndrome had significant effects on the his usual occupation of drug treatment specialist, as he required frequent breaks to use the restroom. The Veteran reported that he had missed less than one week of work in the preceding 12 months as a result of his irritable bowel syndrome symptoms. The examiner noted that the Veteran's irritable bowel syndrome had mild effects on the his ability to perform chores, shopping, exercise, sports, recreation, and traveling. Also of record are VA Medical Center and private treatment records that show the Veteran receives regular medical care for a variety of health ailments. Upon review of the evidence of record and resolving reasonable doubt in the Veteran's favor, the Board finds that a 30 percent disability rating is warranted for the service-connected irritable bowel syndrome for the entire appeal period. The Board finds that the service-connected irritable bowel syndrome more closely approximates the criteria for a 30 percent rating under Diagnostic Code 7319. A maximum 30 percent disability rating is warranted for severe irritable colon syndrome productive of diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. 38 C.F.R. § 4.114, Diagnostic Code 7319. The competent and credible evidence shows that the service-connected irritable bowel syndrome has been characterized as mild not severe. However, competent and credible evidence establishes that the service-connected irritable bowel syndrome more closely approximates a disability picture manifested by frequent episodes of abdominal distress and diarrhea or alternating diarrhea and constipation. There is competent and credible evidence that the Veteran has had symptoms of diarrhea, alternating symptoms of diarrhea and constipation and abdominal since service. At the hearing before the Board in September 2010, the Veteran testified that since 2002 and since service, he has had severe diarrhea on a daily basis. He stated that he also had symptoms of burning and cramping. He reported that the symptoms were frequent and daily. The Veteran is competent to report observable symptoms such pain and having episodes of diarrhea. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The Board also find the Veteran's statements regarding his symptoms to be credible. The Veteran's statements are consistent with his other statements made during the course of the appeal and the statements are supported by the evidence of record. Service records dated in October 2002 indicate that the Veteran reported having diarrhea and gastroenteritis. The Veteran reported having stomach problems when he filed his application for compensation benefits and when he sought VA medical treatment in November 2003 and December 2003. VA treatment records dated in May 2004 and November 2004 note that the Veteran reported having diarrhea. The August 2006 VA examination report indicates that the Veteran reproved having intermittent diarrhea. Tricare treatment records dated in May 2009 and June 2009 indicate that the Veteran reported having gastroesophageal reflux disease and epigastric discomfort. The Board notes that at the September 2010 Board hearing, the Veteran testified that his irritable bowel syndrome symptoms had worsened and that he suffered from episodes of diarrhea and abdominal pain on a regular basis. At the August 2011 VA examination, the Veteran reported weekly episodes of diarrhea, episodes of intestinal pain occurring several times a week, and monthly episodes of constipation. There is evidence of record that weighs against the claim for a higher rating for irritable bowel syndrome. The August 2006 VA examination report indicates that the Veteran reported that he suffered from episodes of diarrhea every three months and VA treatment records show that he only sought sporadic treatment for diarrhea. The April 2011 VA examination report indicates that the irritable bowel syndrome was characterized as mild not severe. After a review of all the evidence in this case, the Board finds that the evidence is in equipoise on the issue of whether a 30 percent evaluation is warranted for the service-connected irritable bowel syndrome for the entire appeal period. There is competent and credible evidence of record which establishes that for the entire appeal period, the irritable bowel syndrome is productive of diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. Affording the Veteran the benefit of doubt, a 30 percent rating is warranted for the service-connected irritable bowel syndrome for the entire appeal period. The claim is granted to that extent. The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration. 38 C.F.R. § 3.321(b)(1). The threshold factor for extra-schedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111 (2008). In the case at hand, the record shows that the manifestations of the Veteran's irritable bowel syndrome are contemplated by the schedular criteria. In sum, there is no indication that the average industrial impairment from his irritable bowel syndrome would be in excess of that contemplated by the assigned rating. In addition, the evidence does not show frequent hospitalization or marked interference with employment beyond that envisioned by the currently assigned rating. Therefore, the Board has determined that referral of this case for extra-schedular consideration is not in order. ORDER A 30 percent disability rating is warranted for irritable bowel syndrome for the entire appeal period and the appeal is granted, subject to the laws and regulations pertinent to payment of monetary benefits. ____________________________________________ C. L. KRASINSKI Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs