Citation Nr: 1321785 Decision Date: 07/08/13 Archive Date: 07/18/13 DOCKET NO. 06-25 379 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES Entitlement to an increased initial rating for Crohn's disease, rated as 10 percent disabling prior to August 4, 2008, as 30 percent disabling since August 4, 2008, and as 60 percent disabling since December 19, 2012. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Cryan, Counsel INTRODUCTION The Veteran served on active duty from January 1958 to December 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board remanded the Veteran's claim for additional development in August 2010 and October 2012. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of entitlement to service connection for a right bicep tear, cauda equina syndrome, and erectile dysfunction being remanded are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. Prior to August 4, 2008, the Veteran's service-connected Crohn's disease was manifested by moderate symptoms with infrequent exacerbations. 2. Since August 4, 2008, the Veteran's service-connected Crohn's disease was manifested by severe symptoms with numerous attacks a year and malnutrition, with health only fair during remissions. CONCLUSIONS OF LAW 1. Prior to August 4, 2008, the schedular criteria for a rating in excess of 10 percent for Crohn's disease have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.7, 4.14, 4.114, Diagnostic Code 7323 (2012). 2. Since August 4, 2008, the schedular criteria for a rating of 60 percent and no more for Crohn's disease have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.7, 4.14, 4.114, Diagnostic Code 7323 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in letters dated in January 2005, November 2010, February 2011, November 2012, and January 2013. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls upon the party attacking the agency determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the April 2013 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained several examinations with respect to the claim. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Factual Background Private treatment reports from A. Hoffman, M.D., dated in December 1992 reflect that the Veteran was assessed with irritable bowel. Private treatment reports from St. Joseph's Health Center reflect treatment for chronic diarrhea and inflammatory bowel disease in April 1998. The Veteran was noted to be treated with Azulfidine with excellent control. A November 1998 colonoscopy revealed that inflammatory bowel disease was in remission and a rectal polyp was removed. The Veteran was treated for abdominal distension and a bowel obstruction in April 1999. In September 2002, the Veteran was treated for probable granulomatous colitis with extensive colon involvement. Physical examination of the abdomen revealed no masses, no guard, and no rebound. He was assessed with inflammatory bowel disease. A colonoscopy performed at that time revealed a firm nodule of the left prostate, deformity of the ileocecal valve, and evidence of previous inflammation and mucosal scarring. Private treatment reports from H. Dempsey, D.O., reflect that the Veteran received B12 shots monthly for pernicious anemia during the period from September 1999 to March 2002. At a February 2005 VA examination, the Veteran reported a history of chronic intermittent diarrhea. He indicated that he was diagnosed with Crohn's disease in 1990 and his current regimen of treatment consisted of taking one sulfasalazine tablet four times a day. The Veteran reported that his Crohn's disease did not interfere with his usual activities. He indicated that he took his medication daily and had persistent but minor flare-ups of diarrhea with some diarrhea on a daily basis. Physical examination revealed very little to minimal tenderness to palpation in the right upper quadrant. Auscultation of the abdomen revealed normal peristaltic sounds. The examiner did not appreciate any organomegaly on examination of the abdomen. The examiner diagnosed the Veteran with Crohn's disease. An August 2005 statement from W. Hartong, M.D., of Gastrointestinal Associates reflects that Dr. Hartong reported that the Veteran's Crohn's disease was advanced and that a recent colonoscopy demonstrated deformity of the ileocecal valve and colonic mucosal inflammation and scarring. At a June 2006 VA examination, the Veteran reported chronic nausea and symptoms of acid reflux but no vomiting and five diarrhea stools per day. The stools were reported to be not formed and occasionally watery. Physical examination of the abdomen revealed tenderness in the right upper quadrant and mid right abdomen. The examiner diagnosed the Veteran with inflammatory bowel disease and Crohn's disease. At a November 2010 VA examination, the Veteran reported intermittent nausea but no vomiting, continuous bloating, and intermittent cramping with intermittent diarrhea that occurred twice per day. There was no noted hematochezia. The Veteran reported flare-ups one to two times per week with diarrhea and watery loose stools. He had soft formed stools at other times. He indicated that his current medication regimen consisted of Humira injections twice daily, sulfasalazine two tablets four times a day, and cholestyramine daily which helped with loose stools. He reported lower abdominal pain with cramps intermittently which did not affect his daily activities. He reported from three to seven stools per day. A 2009 colonoscopy revealed normal appearing mucosa and a pathology report did not show any diagnostic abnormalities. There was microfocal acute cryptitis consistent with colitis. The Veteran was started on iron for anemia and he also received B12 injections every three weeks due to Crohn's ileocolitis. His previous colonoscopies showed some scattered neutrophil but no abscesses and no evidence of dysplasia. Physical examination of the abdomen revealed that it was soft with some tenderness, no masses, no organomegaly, and nondistended with no atrophy of muscles. The examiner diagnosed the Veteran with Crohn's ileocolitis with pernicious anemia and diarrhea. At a December 2012 VA examination, the examiner reviewed the claims file and performed a physical examination. The examiner noted that the Veteran's current condition was ileocolonic with stricture and chronic inflammation throughout the colon ilium and ilium. The examiner noted that continuous medication including sulfasalizine 500 mg six times per day, calcium tablets, folic acid, vitamin B12 injections, and Imodium daily was required for control of the Veteran's intestinal condition. The examiner indicated that the Veteran's symptoms included diarrhea, abdominal distension, anemia, nausea, and more or less constant abdominal distress. The examiner reported that the Veteran had malnutrition, serious complications, and/or other general health effects attributable to Crohn's disease with health only fair during remissions. A September 2012 colonoscopy revealed a rectal dysplasia-associated lesion with pancolitis on biopsies. The examiner indicated that the Veteran's Crohn's disease interrupted his work as a calibration technician for Western Electric and resulted in a lack or energy. Private treatment reports from Colorectal Surgery Associates dated in November 2012 and January 2013 reflect that a September 2012 colonoscopy showed mild active chronic colitis without dysplasia; moderate chronic inflammation in the pericecal biopsy; ulceration, acute inflammation and indeterminate dysplasia of the nodularity at the ileocecal valve; moderate chronic inflammation in the random right colon biopsies; mild chronic inflammation in the random left colon biopsies; active colitis with tubular adenoma of the rectal polyp that was completely removed; hyperplastic polyp in the rectal nodularity; and chronic inflammation in the perirectal polyp biopsy. The examiner indicated that the Veteran's Crohn's disease was minimally symptomatic. The Veteran reported five or less bowel movements per day and some intermittent nausea and indigestion. He indicated that he took antidiarrheal medication only when his bowels gave him trouble. The Veteran reported that he ate without any abdominal pain. When he gets a flare-up he indicated that he goes on a liquid diet. Physical examination of the abdomen in January 2013 revealed no hepatosplenomegaly, no masses, and the abdomen was nontender. The Veteran was assessed with Crohn's disease in November 2012 and January 2013. VA treatment reports reflect that the Veteran was having ten stools per day due to his Crohn's disease in November 2005. In June 2008 reflect that a colon biopsy showed inactive colitis. In December 2008 reflect that the Veteran reported four to six formed stools per day and he was taking Humira and sulfasalzine. The examiner noted that the Veteran's Crohn's disease appeared to be in remission with the use of Humira and sulfalazine. In August 2010, the Veteran reported three to five non-bloody bowel movements per day ranging from liquid to semi-solid to formed stool. He denied fever, chills, nausea, vomiting, abdominal pain, or change in weight or appetite. He reported heartburn once per week. In July 2011, the Veteran was noted to have Crohn's disease with partial intermittent bowel obstruction. He reported intermittent episodes of abdominal pain/distension with nausea that he recognized as bowel obstruction and which was treated conservatively with no surgical intervention. He was noted to have stopped Humira and he reported two to three formed stools per day. Physical examination of the abdomen revealed that it was nondistended and nontender with positive bowel sounds. In September 2011, the Veteran was noted to have a history of stricturing Crohn's ileocolitis with two episodes of small bowel obstruction since June 2011. In February 2013 reflect that the Veteran's colitis symptoms were improved and he was no longer taking Humira. He reported three bowel movements per day, no blood, and no abdominal pain. A September 2012 colonoscopy was noted to show a rectal lesion with pancolitis on biopsies. III. Analysis Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Where entitlement to compensation has already been established and an increase in the assigned rating is at issue, it is the present level of disability that is of primary concern. Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7. Vet. App. 55 (1994). However, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). The rating of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2012). The Veteran's Crohn's disease has been rated pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7323 (2012) which pertains to ulcerative colitis. Under Diagnostic Code 7323, a 10 percent rating is warranted for ulcerative colitis with moderate symptoms with infrequent exacerbations. A 30 percent rating is assigned for ulcerative colitis productive of moderately severe symptoms with frequent exacerbations. A 60 percent rating is warranted for severe symptoms with numerous attacks a year and malnutrition, with the appellant's health only fair during remissions. Finally, a 100 percent is warranted for pronounced symptoms resulting in marked malnutrition, anemia, and general debility, or with serious complications, such as liver abscess. 38 C.F.R. § 4.114, Diagnostic Code 7323 (2012). A. Period prior to August 4, 2008 For the period prior to August 4, 2008, based on a review of the relevant evidence, and the applicable law and regulations, it is the Board's conclusion that the preponderance of the evidence is against the assignment of a schedular rating in excess of 10 percent for Crohn's disease. The evidence reported above reflects that at a February 2005 VA examination, the Veteran's Crohn's disease was manifested by minor flare-ups of diarrhea and physical examination of the abdomen revealed very little to minimal palpation in the right upper quadrant. There was no organomegaly of the abdomen. VA outpatient treatment reports reflect that the Veteran reported ten stools per day in November 2005. While Dr. Hartong described the Crohn's disease as "advanced" in August 2005, he did not include any pertinent objective findings attributable to Crohn's disease. At the June 2006 VA examination, the Veteran reported chronic nausea and symptoms of acid reflux but no vomiting and five diarrhea stools per day. Physical examination of the abdomen revealed tenderness in the right upper quadrant and mid right abdomen. In June 2008, VA outpatient treatment reports reflect that the Veteran had inactive colitis. At no time during the relevant time period has the Veteran's Crohn's disease been productive of moderately severe symptoms with frequent exacerbations. In the absence of manifestations required for a higher rating, the Board finds that the weight of the evidence is against the assignment of a higher schedular rating under Diagnostic Code 7323 for the period prior to August 4, 2008. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent for the period prior to August 4, 2008, and the claim is denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. Period since August 4, 2008 For the period since August 4, 2008, based on a review of the relevant evidence, and the applicable law and regulations, it is the Board's conclusion that a rating of 60 percent and no more is warranted for the Veteran's service-connected Crohn's disease. As noted above, VA outpatient treatment reports dated during the relevant period reflect that the Veteran's symptoms ranged from three to six stools per day with a consistency ranging from liquid to formed stool and the use of medication to control his symptoms. In December 2008, the Veteran's Crohn's disease was noted to be in remission with the use of medication. He endorsed heartburn once a week in August 2010 and he had a partial bowel obstruction manifested by abdominal pain/distension with nausea which was treated conservatively with medication in July 2011. At the November 2010 VA examination, the Veteran reported intermittent nausea but no vomiting, continuous bloating, and intermittent cramping with intermittent diarrhea that occurred twice per day and flare-ups of Crohn's disease one to two times per week with diarrhea and watery loose stools. He had soft formed stools at other times. He used several medications to control his Crohn's and he reported lower abdominal pain with cramps intermittently which did not affect his daily activities. He endorsed from three to seven stools per day. The examiner diagnosed the Veteran with Crohn's ileocolitis with pernicious anemia and diarrhea. The results of the most recent VA examination in December 2012 indicate that the Veteran was required to use continuous medication to control his Crohn's disease. Additionally, the Veteran's symptoms included diarrhea, abdominal distension, anemia, nausea, and more or less constant abdominal distress. The examiner reported that the Veteran had malnutrition, serious complications, and/or other general health effects attributable to Crohn's disease with health only fair during remissions. It is of note that the Veteran's private treatment provider indicated in November 2012 and January 2013 that the Veteran's Crohn's disease was only minimally symptomatic. Moreover, VA treatment reports dated in February 2013 reflect that the Veteran's colitis symptoms were improved and he was no longer taking Humira. He reported three bowel movements per day, no blood, and no abdominal pain at that time. At no time during the relevant time period has the Veteran's Crohn's disease been productive of pronounced symptoms resulting in marked malnutrition, anemia, and general debility, or with serious complications, such as liver abscess. In the absence of manifestations required for a higher rating, the Board finds that the weight of the evidence is against the assignment of a rating in excess of 60 percent under Diagnostic Code 7323 for the period since August 4, 2008. Accordingly, the Board finds that a rating of 60 percent and no more is warranted for the period since August 4, 2008. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). IV. Extraschedular Considerations The Board has considered whether referral for consideration of an extraschedular rating is warranted. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. Thun v. Peake, 22 Vet. App. 111 (2008); Fisher v. Principi, 4 Vet. App. 57 (1993); 38 C.F.R. § 3.321(b)(1) (2012). Factors for consideration in determining whether referral for an extraschedular rating is necessary include marked interference with employment or frequent periods of hospitalization that indicate that application of the regular schedular standards would be impracticable. Thun v. Peake, 22 Vet. App. 111 (2008); 38 C.F.R. § 3.321(b)(1) (2012). The Board finds that referral is not warranted in this case. The evidence of record does not show that the Veteran's service-connected Crohn's disease markedly interfered with employment, beyond that contemplated in the assigned rating, or warranted frequent periods of hospitalization. While the most recent examiner indicated that the Veteran's Crohn's disease interrupted his work as a calibration technician for Western Electric and resulted in a lack of energy, none of the examiners of record concluded that the Veteran's disability markedly interfered with his ability to maintain employment at any time during the relevant appeal period. Moreover, the service-connected Crohn's disease did not required frequent periods of hospitalization. Consequently, the Board finds that the evidence does not show that the criteria for referral are met because marked interference with employment and frequent hospitalizations are not shown and the schedular rating criteria are not shown to be inadequate. The schedular rating criteria provide for higher ratings for more severe symptomatology, which is not shown. 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). ORDER Entitlement to an increased rating for Crohn's disease, rated as 10 percent disabling prior to August 4, 2008, is denied. Since August 4, 2008, a rating of 60 percent and no more for Crohn's disease is granted. REMAND In January 2013, the Veteran expressed disagreement with a February 2012 rating decision which denied entitlement to service connection for a right bicep tear, cauda equina syndrome, and erectile dysfunction. However, the RO did not issue a statement of the case with regard to these issues. Where a notice of disagreement has been filed with regard to issues, and a statement of the case has not been issued, the appropriate Board action is to remand the issues for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) Issue a statement of the case which addresses the issues of entitlement to service connection for a right bicep tear, cauda equina syndrome, and erectile dysfunction. The appellant has the right to submit additional evidence and argument on the matter or matters 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. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs