Citation Nr: 1321610 Decision Date: 07/05/13 Archive Date: 07/12/13 DOCKET NO. 08-35 212 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement an increased rating for enteritis (Crohn's disease) with granulomatous hepatomegaly with anemia (quiescent), currently rated as 60 percent disabling. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Higgs, Counsel INTRODUCTION The Veteran served on active duty from September 1972 to June 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In that decision, the RO increased the rating for the Veteran's enteritis (Crohn's disease) with granulomatous hepatomegaly with anemia (hereafter referred to a Crohn's disease) from 0 to 30 percent. The Veteran disagreed with the decision and requested a higher rating. In December 2011, the Veteran testified during a hearing at the RO before the undersigned; a transcript of that hearing is of record. This case was the subject of a November 2012 Order of the Court of Appeals for Veterans Claims (Court) by which the Court granted a Joint Motion for Partial Remand (Joint Motion) of the parties and vacated the Board's April 2012 decision and remand in this matter, to the extent the Board decision granted no more than a rating of 60 percent for Crohn's disease. As was noted in the Board's April 2012 decision and remand, the issues of entitlement to service connection for back joint and muscle pain, claimed as secondary to Crohn's disease, has been raised by the record, including the Veteran's December 2011 letter and subsequent statements and evidence received at the RO, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. Also, since there is no indication of pertinent action being completed by the RO since the time of the Board's April 2012 remand of the claim for a TDIU, the issue of entitlement to a TDIU is again addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The symptoms of the Veteran's Crohn's disease have most nearly approximated severe impairment with numerous attacks per year and malnutrition, the health only fair during remissions. 2. The preponderance of the evidence demonstrates that the Veteran's Crohn's disease is not manifested by pronounced impairment, resulting in marked malnutrition, anemia, and general debility, or with serious complications such as liver abscess. CONCLUSION OF LAW The criteria for a rating in excess of 60 percent for enteritis (Crohn's disease) with granulomatous hepatomegaly with anemia (quiescent) are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.7, 4.114, Diagnostic Code (DC) 7325-7323 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA 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. 38 C.F.R. § 3.159(b)(1). In December 2006 and August 2010 letters, the RO notified the Veteran of the evidence needed to substantiate the claim for an increased rating for Crohn's disease. These letters also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist in obtaining and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 was amended to eliminate a fourth requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). The December 2006 VCAA letter discussed above complied with this fourth VCAA notice requirement as in effect at that time. In addition, the December 2006 and August 2010 VCAA notice letters explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Moreover, in a July 2008 letter, the RO provided additional information regarding disability ratings and the criteria applicable to the Veteran's increased rating claim in compliance with a decision of the Court that was subsequently vacated by the Federal Circuit. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Contrary to VCAA requirements, some of the VCAA-compliant notice in this case was provided after the initial adjudication of the claim. The timing deficiency was cured by readjudication of the claim in a December 2011 supplemental statement of the case (SSOC). Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In this case, VA obtained the Veteran's service treatment records and all of the identified post-service treatment records, as well as the records pertinent to Social Security Administration (SSA) disability determinations. The Veteran was also provided with January 2007 and August 2010 VA-authorized examinations. The examinations were adequate for rating purposes. There is no requirement that a medical examiner comment on every favorable piece of evidence in a claims file. Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012); see also Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (noting that the law imposes no reasons-or-bases requirement on examiners). Examination reports are adequate when they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion. Monzingo, 26 Vet. App. at 105. The VA examination reports included adequate findings for application of all relevant rating criteria, were based on an accurate history of the Veteran's disability, and to the extent they reflected medical opinions, those opinions were sufficiently explained by the January 2007 and August 2010 VA examiners. During the December 2011 Board hearing, the undersigned and the Veteran's representative asked questions designed to explain the issue and indicate that it was incumbent upon the Veteran to submit any potentially relevant evidence in his possession in support of his claim. This action supplemented VA's compliance with the VCAA. See Bryant v. Shinseki, 23 Vet. App. 488 (2010); 38 C.F.R. § 3.103. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Essentially, all available evidence that could substantiate the claim has been obtained. There is no indication in the claims file that there are additional available relevant records that present a reasonable possibility of substantiating the Veteran's claim but have not yet been obtained. Merits of the Claim The standard of proof to be applied in decisions on claims for veterans' benefits is set forth at 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4. Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. 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. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are appropriate for an increased rating claim, if the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, as explained below, a uniform 60 percent rating is proper. 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. The Veteran's Crohn's disease is rated under 38 C.F.R. § 4.114, Diagnostic Codes (DCs) 7325-7323. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. DC 7325 is applicable to chronic enteritis and is to be rated as for irritable colon syndrome. Irritable colon syndrome is rated under DC 7319 and 30 percent is the maximum schedular rating. DC 7323 is applicable to ulcerative colitis. Under DC 7323, a 30 percent rating is warranted for moderately severe impairment, with frequent exacerbations. A 60 percent disability rating is warranted for severe impairment, with numerous attacks yearly and with malnutrition, with health only fair during remissions. A 100 percent rating is warranted for pronounced impairment, resulting in marked malnutrition, anemia, and general debility, or with serious complications such as liver abscess. Lay testimony is competent as to observations as well as some matters of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). During the Board hearing, the Veteran testified to approximately monthly flare-ups of his disability, causing him to get severe stomach cramps and sometimes resulting in hospitalization. Hearing Transcript, at 4. The Veteran also testified to significant weight loss, having lost more than 35 pounds since his problems with Crohn's disease began in 2002. Id. at 8. In response to questions from his representative, the Veteran indicated that his health was at best fair and at worst poor. Id. at 9. The Veteran also testified that he took early retirement in September 2010, and that he had struggled for the two years prior to retirement and worked many half days because of the pain from his Crohn's disease. Id. at 11-12. At the February 2007 VA-authorized examination, the Veteran indicated that his weight had gone from 195 pounds to 178 pounds within a 10 month period, he had nausea, vomiting, and alternating diarrhea and constipation, as well as daily abdominal pain. He indicated that he did not have symptoms of hepatomegaly, i.e., he had never vomited blood, or had liver problems. On examination, he was 175 pounds and well nourished. Examination of the abdomen showed no tenderness and the liver was not palpable. Liver function tests were normal and the prothrombin time was within normal limits. In the diagnosis section, the examiner indicated that there was no change in the enteritis diagnosis, with subjective symptoms getting worse, but that the intestinal condition did not cause significant anemia or malnutrition. The examiner also found that both granulomatous hepatomegaly and anemia had resolved. A March 2010 Franciscan Health System discharge summary indicates that the Veteran was admitted with abdominal pain, that he had a long history of Crohn's disease, which had been quiescent for most of the 1980s to early 2000s, but that subsequently the Veteran began having frequent episodes of indigestion and abdominal pain and had been hospitalized on multiple occasions for Crohn's disease flare-ups. The discharge diagnoses included Crohn's disease exacerbation, resolving. At the August 2010 VA-authorized examination, the Veteran indicated that he was recently admitted to the hospital for rehydration and treatment with Prednisone and that he had lost 20 pounds over the previous year. He again noted nausea, vomiting, alternating constipation and diarrhea, and abdominal pain and cramps. The Veteran also indicated that the last time he was anemic in relation to his Crohn's disease was in 2002. On examination, the Veteran was again 175 pounds and well nourished. There was tenderness on examination of the abdomen, but no findings of hepatomegaly, or other abnormalities. Blood test abnormalities were attributed to the Veteran's service-connected splenectomy. In the diagnosis section the examiner indicated that the diagnosis was changed to Crohn's disease with granulomatous hepatopathy with anemia (quiescent). The Board has characterized the issue on appeal accordingly. A May 2011 Franciscan health system history and physical indicated that the Veteran was again admitted to the hospital with abdominal pain and that he had had intermittent flare-ups of his Crohn's disease over the previous 9 years. The diagnosis included a Crohn's flare-up. The Board finds that the above evidence best supports a 60 percent rating. The terms "moderately severe" and "severe" are not defined in the regulation. The Board finds that the Veteran's description of his symptoms during the Board hearing and to the VA-authorized examiners, including numerous attacks per year, along with his multiple hospital admissions and the effect of his Crohn's disease on his employment and daily life warrant the conclusion that his symptoms most nearly approximate the severe impairment envisioned by the criteria for a 60 percent rating, notwithstanding the examination findings that the Veteran was well nourished. In this regard, the Board notes that the Veteran appeared extremely slender at the time of his Board hearing. The preponderance of the evidence is, however, against entitlement to the next higher, 100 percent, schedular rating because the above evidence reflects that his Crohn's disease did not result in pronounced impairment with marked malnutrition, anemia, and general debility, or with serious complications such as liver abscess. The evidence including the Veteran's statements to the examiners indicates that he has not had anemia during the appeal period, liver findings have been normal, and as will be discussed below, there was no general debility, as is reflected in the SSA disability records, including records of private treatment and information provided to SSA by the Veteran's primary care physician. Consequently, the Veteran's symptoms do not more nearly approximate the criteria for a 100 percent rating under DC 7323. In the Joint Motion issued in this matter, it was found that in its April 2012 Board decision the Board incorrectly noted in support of its reasons for denying a rating in excess of 60 percent that the SSA had not found the Veteran disabled. It was stipulated that while the record does contain an initial SSA decision that the Veteran was "Not Disabled" (see decision rendered December 10, 2010), subsequent SSA documents showed that the Veteran was granted a fully favorable decision on his disability claim and that he currently receives SSA disability compensation. In support of this finding, the Joint Motion referenced as evidence of record an "Order of Dismissal" issued on May 19, 2011, stating that the Veteran's hearing request was dismissed because "[o]n April 15, 2011, a fully favorable decision was issued by an attorney advisor"); and an SSA Notice of Award, issued by SSA in April 2011, reflecting that the Veteran was entitled to monthly disability benefits beginning March 2011. With consideration of the basis for the Joint Motion in this matter, the Board finds the SSA evidence and adjudications considered in detail as weighing against a rating of 100 percent for the Veteran's Crohn's disease. After the initial denial of SSA disability benefits in December 2010, new evidence was received in support of his SSA disability claim, including an April 2011 statement from a private treating physician, indicated elsewhere in the claims file to be the Veteran's primary care physician, setting forth the Veteran's diagnoses relevant to his disabilities to be considered by SSA as 1) Crohn's disease, and 2) chronic low back pain and mid-back pain secondary to degenerative disc disease and degenerative joint disease of the lumbosacral and thoracic spines. His degenerative disc disease of the spine was indicated to be reasonably likely to cause pain. His prognosis was fair. He was indicated to be incapable of medium-duty work due to his degenerative spine. Considering the Veteran's medical condition, he was indicated to be capable of light work (can lift 20 pounds maximum and frequently left and/or carry up to 10 pounds; even though the weight lifted may be negligible, light work may require frequent walking or standing, or involves sitting most of the time with occasional pushing and pulling of arm and/or leg controls), a level of disability less than being incapable of sedentary work. See Medical Report, indicated by SSA computer CD to have been prepared by and received from Lowell Finkleman, MD, on April 4, and April 6, 2011, respectively. The Board considers this level of overall disability (which is indicated to have taken into consideration both Crohn's disease and nonservice-connected back disability) to be certainly less than "debility" as referred to at DC 7323, since it precluded neither light nor sedentary work, and even more certainly to be less than "pronounced impairment, resulting in marked malnutrition, anemia, and general debility, or with serious complications such as liver abscess." Thus, this evidence weighs against assignment of a 100 percent disability rating pursuant to DC 7323. In addition, the SSA received a detailed March 2011 letter from the Veteran's employer, indicating that the Veteran had worked there since 1981 but in September of 2010 took an early retirement due to his declining health and resulting difficulties in performing the required eight to ten hours a day of moderate to heavy physical labor or in working a full year-round work schedule, which had resulted in him being paid hourly (so he could take time off as needed) rather than on a salaried basis. The Veteran's allegations to SSA indicated the Veteran to experience disability as defined by SSA due not only to Crohn's disease, but also due to back disability, hearing loss, bursitis, arthritis of the knee and shoulder, and chronic fatigue. His back disability was coded by SSA in 2010 as being his "primary" disability, and his Crohn's disease his "secondary," though both were found to be "severe" as SSA uses that term. His past work history was noted to be as a superintendent of construction. He was found to have two severe medically determinable impairments by SSA standards-degenerative and discogenic disc disease of the back, and Crohn's disease. There is nothing in the SSA medical evidence, residual functional capacity assessments, or other evidence or determinations meeting or approximating or consistent with a finding that the Veteran was disabled by SSA standards due to Crohn's disease only, as considered apart from his discogenic or degenerative disease of the back, and nothing to indicate that, taking into consideration all aspects the Veteran's disability picture (whether service-connected or not), the Veteran experienced marked malnutrition, anemia and general debility, or serious complications such as a liver abscess. Thus, this evidence does not support a rating of 100 percent pursuant to DC 7323. Rather, his private physician indicated in April 2011 that he was limited by Crohn's disease and back disability, but still capable of light work (but no more), in April 2011, while his employer of nearly 30 years indicated he retired due to arising difficulty in performing the medium to heavy duty labor required for his job. This evidence, though it may be supportive of a finding of disability under laws and regulations pertaining to SSA disability benefits, is nevertheless evidence that on balance weighs against a finding that the Veteran is entitled to a rating in excess of 60 percent specifically for Crohn's disease under the criteria set forth at Diagnostic Code 7323. Thus, SSA's determination that the Veteran is disabled under SSA standards is not supportive of a rating of 100 percent under VA's rating criteria as applicable in this appeal, as the underlying evidence indicates a level of disability less than that required for a 100 percent rating under VA's DC 7323, and also with nonservice-connected low back disability being a substantial component of disability as found by SSA. As to consideration of referral for an extraschedular rating, such consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. The discussion above reflects that the symptoms of the Veteran's Crohn's disease are fully contemplated by the applicable rating criteria. Those criteria include the level of impairment, and the Board has, consistent with the argument of the Veteran's representative, taken account of the effect of the disease on the Veteran's employment and the fact that it has resulted in multiple hospitalizations. Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required, and referral for consideration of an extraschedular rating for Crohn's disease is not warranted. 38 C.F.R. § 3.321(b)(1). For the foregoing reasons, the preponderance of the evidence reflects that the symptoms of the Veteran's Crohn's disease most nearly approximate the criteria for a 60 percent rating. The benefit-of-the-doubt doctrine is therefore not for application, and a rating in excess of 60 percent is not warranted for Crohn's disease. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). The Board notes that there is evidence from SSA that the Veteran is not employable due to a combination of service-connected and nonservice-connected disabilities, and further notes that the Veteran meets the schedular criteria for a TDIU. These are matters to be considered in the RO's adjudication of entitlement to a schedular TDIU, as addressed in the remand section of this opinion, below. See 38 C.F.R. § 4.16(a). ORDER A rating in excess of 60 percent rating for enteritis (Crohn's disease) with granulomatous hepatomegaly with anemia (quiescent) is denied. REMAND The Board remanded the Veteran's claim for a TDIU in its April 2012 decision and remand in this appeal. A claim for a TDIU is deemed to have been submitted as part of any claim for an increased rating when evidence of unemployability is submitted at the same time as the claim and the Veteran seeks the highest rating possible. See Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran indicated in a September 2010 statement and during his Board hearing that his Crohn's disease had contributed to his decision to retire. Consequently, the issue of entitlement to a TDIU has been raised. Moreover, the RO addressed the issue of entitlement to a TDIU in the reasons or bases section of its June 2011 SSOC, although only the increased rating claim was listed as an issue. As was discussed in the Board's April 2012 decision and remand in this appeal, the only remaining question in this regard was whether referral or remand of this claim is warranted. Because the issue of entitlement to a TDIU is a part and parcel of a rating claim that meets the above criteria, and is not a separate claim, the issue of entitlement to a TDIU is properly before the Board for adjudication as part of the appeal of the denial of the rating claim. Moreover, the Veteran is in receipt of service connection for splenectomy, rated 30 percent disabled and, at the time of the June 2011 SSOC was rated 30 percent for Crohn's disease, for a combined 50 percent rating. As the Board's decision to grant entitlement to a 60 percent rating has rendered the Veteran eligible for a TDIU on a schedular basis, it would be premature for the Board to address the TDIU claim in the first instance. See 38 C.F.R. § 4.16(a) (listing criteria for schedular consideration of a TDIU). Consequently, the Board remanded, rather than referred, the TDIU claim in its April 2012 Board decision and remand. As noted in today's decision, above, there is evidence from SSA that the Veteran is not employable due to a combination of service-connected and nonservice-connected disabilities. Further, the schedular criteria for a TDIU are met. These are matters that should be considered in the RO's adjudication of entitlement to a schedular TDIU. See 38 C.F.R. § 4.16(a). Accordingly, the case is REMANDED for the following action: Take appropriate action to develop and adjudicate the Veteran's claim for a TDIU, which was part of his claim for an increased rating for Crohn's disease, to include, if deemed necessary, a VA examination to address the question of whether the Veteran's splenectomy and/or Crohn's disease render, or rendered, him unemployable. Thereafter, subject to current appellate procedure, the case must be returned to the Board for further consideration, if otherwise in order. No action is required of the Veteran until he is otherwise notified by the RO/AMC. By this action, the Board intimates no opinion, legal or factual, as to any ultimate disposition warranted in this case. 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 of Veterans' Appeals 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). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs