Citation Nr: 1324344 Decision Date: 07/31/13 Archive Date: 08/07/13 DOCKET NO. 07-14 018 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial disability evaluation in excess of 20 percent for irritable bowel syndrome (IBS). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney at Law WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD D. M. Ames, Counsel INTRODUCTION The Veteran had active service from January 1966 to January 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The rating decision assigned an initial 10 percent disability evaluation for IBS with an effective date of June 8, 2006. Applicable law mandates that when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The Veteran testified at a hearing in February 2009 before the undersigned. A copy of the transcript has been associated with the claims file. The Board denied the Veteran's claim in a May 2012 decision. The Veteran appealed his case to the U. S. Court of Appeals for Veterans Claims (Court), and in a September 2012 Order, the Court granted the parties' Joint Motion for Remand (Joint Motion), vacated the Board's denial, and remanded the matter to the Board for development consistent with the Joint Motion. In May 2013, the Veteran's attorney submitted additional evidence and waived the right to have it initially considered by the RO. 38 C.F.R. §§ 20.800, 20.1304(c) (2012). FINDING OF FACT The Veteran's IBS manifests as chronic diarrhea and near constant epigastric distress. CONCLUSION OF LAW The criteria for an initial 30 percent disability evaluation for IBS have been approximated. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.114, Diagnostic Code 7319 (2012). REASONS AND BASES FOR FINDING 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 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). This appeal arises from disagreement with an initial evaluation following the grant of service connection. Once service connection is granted, the claim is substantiated and additional VCAA notice is not required; any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA has satisfied its duty to notify by issuing a pre-adjudication notice letter in September 2007. This letter advised the Veteran of what evidence was required to substantiate an increased evaluation claim, and of his and VA's respective duties for obtaining evidence. It provided notice regarding the disability evaluation and effective date elements of a service connection claim. Dingess, 19 Vet. App. at 473. The duty to assist provisions of the VCAA have been met. The claims file contains service treatment records (STRs), reports of post-service medical treatment, and reports of VA examinations in October 2007 and May 2010. The examinations were adequate because they were based on a thorough examination, a description of the Veteran's pertinent medical history, a complete review of the claims folder, and appropriate tests. The Veteran and his spouse testified at a travel board hearing in February 2009. At a hearing on appeal, 38 C.F.R. § 3.103(c)(2) (2012) requires that a Veterans Law Judge has a duty to explain fully the issues and a duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). In the present case, the undersigned clearly set forth the issue to be discussed during the hearing. There is no indication that the Veteran does not understand what is necessary to substantiate his claim. Additionally, the record does not indicate that there is any relevant overlooked evidence that the Veteran could submit that would aid in substantiating his claim. After the hearing, the record was left open for an additional 60 days to allow the Veteran to submit additional evidence. The Veteran and his attorney had ample opportunity to submit evidence and argument to substantiate the claim. On appellate review, neither the Veteran nor his attorney has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has either individual identified any prejudice in the conduct of the Board hearing. No additional action in this regard is warranted. The Veteran has not made the RO or the Board aware of any additional evidence that must be obtained in order to fairly decide the appeal. He has been given ample opportunity to present evidence and argument in support of his claim. Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of this issue has been obtained and the case is ready for appellate review. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012). Increased Evaluation Claim Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon 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, 4.20 (2012). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Consideration must given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1. If, as here, there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based upon the facts found. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). See also AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original rating remains in controversy when less than the maximum available benefit is awarded); Hart v. Mansfield, 21 Vet. App. 505 (2007). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 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). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his or her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed); Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. The Veteran's IBS is currently evaluated as 10 percent disabling under Diagnostic Codes 7307-7319, hypertrophic gastritis and irritable colon syndrome. 38 C.F.R. § 4.114 (2012). Under Diagnostic Code 7319, a 10 percent evaluation is warranted when IBS is moderate, with frequent episodes of bowel disturbance with abdominal distress. 38 C.F.R. § 4.114 (2012). A 30 percent evaluation is warranted when IBS is severe with diarrhea or alternating diarrhea and constipation, with more or less constant abdominal distress. Id. A 30 percent evaluation is the highest schedular evaluation available under Diagnostic Code 7319. The medical evidence of record establishes that the Veteran's IBS is severe. As early as January 2007, his VA treatment records noted chronic diarrhea. At his October 2007 VA examination he reported having two watery stools per day. Despite taking medication, he reported that he occasionally had up to four watery stools per day with gas and bloating. He stated that his social activities were disrupted because he was afraid of having diarrhea. He explained that he was unable to tell the difference between gas and a bowel movement, and as a result he always had to go to a bathroom when he thought he needed to flatulate. In April 2009, Dr. R. R., a private gastroenterologist, stated that the Veteran had IBS with a "consistent, chronic problem with diarrhea." These medical records provide probative evidence in support of a finding that the Veteran's IBS is severe due to the frequency of his diarrhea. At his May 2010 VA examination, the Veteran stated that he avoided eating before long trips and complained of epigastric pain. The examiner concluded that the Veteran's symptoms were intermittent and directly provoked by eating. The examiner's finding that the Veteran's symptoms are intermittent provides evidence against his claim. The Veteran has submitted lay evidence in support of his claim. In April 2007, he stated that he ate one meal a day, and he would only eat when near a bathroom. He did not eat before or during work. He stated that he retired early from his job because he spent too much time in the bathroom. In October 2007 he stated that he had daily severe alternating diarrhea and constipation with spasms and cramping. At his February 2009 hearing, he testified that he had diarrhea three to four times per week. He took medication to prevent diarrhea. He also stated that he had abdominal cramps and pain but did not note how frequently the pain occurred. In June 2010 the Veteran stated that he did not feel that the May 2010 VA examiner correctly reported all of his symptoms. The Veteran asserted that he told the examiner that he could not eat breakfast or lunch because then he would need to use the bathroom at work. He also did not feel that the report of normal bowel sounds was accurate because he deliberately did not eat for 24 hours prior to the examination so that he could drive a long distance to the medical center without having diarrhea. In May 2013, the Veteran submitted an affidavit wherein he asserted that his IBS had worsened since "at least 2007." He reported severe diarrhea four to five times per week and severe abdominal cramps three to four times per week. Approximately once a month, he reported soiling himself due to uncontrollable diarrhea. He was prescribed Lomotil and instructed to use it sparingly, but he reported taking it two to five times per week "so [he] could leave [his] house, or to avoid being trapped in the bathroom with diarrhea for hours at a time." He again stated that he ate only one meal a day because within 15 to 30 minutes of eating, he had to use the bathroom "for a couple of hours." The Veteran is competent to state how frequently he has diarrhea and abdominal cramping. Further, the Board finds his statements to be credible. Layno v. Brown, 6 Vet. App. 465 (1994); Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Although he did not report abdominal spasm and cramping prior to his October 2007 statement, he reported it again at his February 2009 hearing, May 2010 VA examination, and May 2013 statement. Although he reported having "daily" spasms and cramps in October 2007 and having them three to four times per week in May 2013, the Veteran's symptoms more closely approximate a 30 percent evaluation because he has severe IBS with daily diarrhea that is sometimes uncontrollable accompanied by very frequent or daily abdominal pain and cramping. 38 C.F.R. §§ 4.7, 4.114 (2012). Affording the Veteran the benefit of the doubt, the appeal is granted to this extent. 38 U.S.C.A. § 5107(b). The Board must determine whether a higher rating is warranted under any other potentially applicable Diagnostic Codes pertaining to IBS. See Butts v. Brown, 5 Vet. App. 532 (1993). The RO rated the Veteran's IBS under Diagnostic Code 7307-7319. Under Diagnostic Code 7307, a 10 percent evaluation is warranted when there is chronic gastritis with small nodular lesions and symptoms. A 30 percent evaluation is warranted when there is chronic gastritis with multiple small eroded or ulcerated areas, and symptoms. 38 C.F.R. § 4.114. Diagnostic Code 7307 requires that hypertrophic gastritis be identified by gastroscope. The record shows that the Veteran has been diagnosed with IBS, not gastritis. None of his colonoscopies showed gastritis. The record does not show that he has had nodular lesions at any time during the appeal period. Diagnostic Code 7307 is not favorable to him. The Veteran has not been diagnosed with any other gastrointestinal condition set forth in 38 C.F.R. § 4.114. His symptoms do not more closely approximate the rating criteria for any other Diagnostic Code pertinent to the digestive system. He has not been diagnosed with ulcerative colitis or diverticulitis, which provide for evaluations in excess of 30 percent. There is no Diagnostic Code set forth in 38 C.F.R. § 4.114 more appropriate than Diagnostic Code 7319. The Board has considered whether referral for an extraschedular rating is appropriate under the provisions of 38 C.F.R. § 3.321(b)(1). The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular evaluations 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 evaluation is therefore adequate, and no referral for extraschedular consideration is required. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). As described above, the manifestations of the Veteran's IBS are contemplated and reasonably described by the schedular criteria in Diagnostic Code 7319, which are based upon bowel function disturbances such as diarrhea and abdominal pain. The evidence does not show an exceptional disability picture with symptoms not represented in the rating schedule. In sum, there is no indication that the average industrial impairment from the disability would be in excess of that contemplated by the assigned rating. Accordingly, the Board has determined that referral of this case for extraschedular consideration is not in order. When entitlement to a total disability rating based on individual unemployability (TDIU) under the provisions of 38 C.F.R. § 4.16 is raised during the adjudicatory process of evaluating the underlying disabilities, it is part of the claim for benefits for the underlying disabilities. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). A TDIU claim is considered reasonably raised when a veteran submits medical evidence of a disability, makes a claim for the highest rating possible, and submits evidence of service-connected unemployability. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). In this case, the Veteran asserted that he elected to retire early from his job because he was concerned that he was going to be reprimanded for spending too much time in the bathroom. However, the evidence does not show that the Veteran's IBS and other service connected disabilities alone have caused unemployability. Because there is no evidence of unemployability, further consideration of entitlement to TDIU is not required. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). ORDER An initial 30 percent disability evaluation for IBS is granted. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs