Citation Nr: 1325595 Decision Date: 08/13/13 Archive Date: 08/16/13 DOCKET NO. 07-28 752 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUES 1. Entitlement to an initial evaluation for irritable bowel syndrome (IBS) in excess of 10 percent prior to May 6, 2011, and in excess of 30 percent thereafter. 2. Entitlement to an effective date earlier than January 10, 2007, for the grant of service connection for IBS. (The issue of entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is addressed in a separate decision under docket number 11-05 396A.) REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from January 1997 to January 2004. This matter is before the Board of Veterans' Appeals (Board) on appeal of a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux, Falls, South Dakota, which in pertinent part, granted service connection for the Veteran's IBS and evaluated it as 10 percent disabling, effective January 10, 2007. In May 2007, the Veteran testified at a personal hearing before the Hearing Officer (HO) at the VA Medical and Regional Office Center in Sioux Falls, South Dakota. A transcript of the testimony is in the claims file. In April 2011, the Board remanded the claims addressed here for additional development. Subsequently, in a May 2012 rating determination, the 10 percent rating for IBS was increased to 30 percent, effective May 6, 2011. The claim for an earlier effective date for the grant of service connection for IBS was denied in a May 2011 supplemental statement of the case (SSOC). The Veteran has continued his appeals. The following determinations are based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." As noted on the title page of this decision, the issue of entitlement to a rating in excess of 30 percent for PTSD is addressed in a separate decision under docket number 11-05 396A. FINDINGS OF FACT 1. Both before and after May 6, 2011, the symptomatology associated with the service-connected IBS has caused no more than severe irritable colon syndrome. 2. The earliest date of a pending claim for service connection for IBS is January 10, 2007. CONCLUSIONS OF LAW 1. The criteria for an initial 30 percent, but not higher, rating for IBS prior to May 6, 2011, have been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 3.102, 4.7, 4.114, Diagnostic Code (DC) 7319 (2012). 2. The criteria for an initial rating in excess of 30 percent for IBS have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 3.102, 4.7, 4.114, Diagnostic Code (DC) 7319 (2012). 3. The criteria for an effective date earlier than January 10, 2007, for the grant of service connection for IBS have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.151, 3.155, 3.156(c), 3.159, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction of any information and any medical or lay 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 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Here, the Veteran has not alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 556 U.S. 396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. As to the Veteran's claims which arise from his disagreement with the effective date and initial rating following the grant of service connection for IBS, courts have held that once service connection is granted the claim is substantiated, additional notice is not required and 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). Therefore, no further notice is needed under VCAA. Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records (STRs) and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). Here, all identified private and VA outpatient treatment records have been obtained, to include Social Security Administration (SSA) treatment records. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012). The Veteran was provided a VA examination regarding his IBS in May 2011. Concerning this VA exam, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The 2011 examination report reflects that the examiner reviewed the Veteran's claims file and past medical history. He recorded the Veteran's current complaints, conducted the appropriate evaluation, and rendered appropriate opinions as to the severity of the condition consistent with the remainder of the evidence of record. The Board therefore concludes that the examination is adequate for rating purposes. See 38 C.F.R. § 4.2 (2012). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Increased Rating - IBS Rated as 10 percent disabling prior to May 6, 2011, and 30 percent thereafter In February 2007, the RO granted service connection for IBS and assigned a 10 percent rating, effective from January 10, 2007. The Veteran has disagreed with the initial disability evaluation assigned. In May 2012, the RO granted an increased rating to 30 percent for IBS, effective from May 6, 2011. The Veteran continues to be dissatisfied with the disability evaluations currently assigned and the issue of entitlement to an increased rating for IBS remains on appeal. Governing regulations provide that there are diseases of the digestive system, particularly with 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, as indicated in the instruction under the title "Diseases of the Digestive System," do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding. 38 C.F.R. §§ 4.14, 4.113 (2012). Ratings under DCs 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348, inclusive, will not be combined with each other. A single evaluation will be assigned under the DC that reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114 (2012). DC 7319 provides ratings for irritable colon syndrome (spastic colitis, mucous colitis, etc.). Mild irritable colon syndrome with disturbances of bowel function with occasional episodes of abdominal distress is rated as noncompensably (zero percent) disabling. Moderate irritable colon syndrome, with frequent episodes of bowel disturbance with abdominal distress, is rated 10 percent disabling. Severe irritable colon syndrome, with diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress, is rated 30 percent disabling. 38 C.F.R. § 4.114 (2012). The Veteran's STRs reflect that he was frequently treated for chronic diarrhea. He used Imodium. Post-service medical records dated through 2006 primarily reflect treatment for a psychiatric disorder, but it is noted that the Veteran occasionally reported gastrointestinal complaints, to include chronic diarrhea. For example, private records from March 2006 and October 2006 show that he reported ongoing gastrointestinal problems. When examined by VA in February 2007, the Veteran said that he had gained 30 pounds since discharge from service. He reported bowel urgency with pain that occurred about 3 to 4 times per week. Imodium helped for about 24 hours before bowel symptoms began again. He had no anemia or debility and denied night sweats or blood in his stool. He did indicate that he had experienced chronic daily diarrhea at the rate of 1 to 2 times a day that was preceded by abdominal pain. On examination, the Veteran's abdomen was soft and nontender, and his bowel sounds were present in all four quadrants. The diagnosis was IBS. The examiner opined that it was more than likely that this condition first manifested during active duty as the Veteran was treated during service for various symptoms of IBS. Subsequently dated treatment records primarily reflect treatment for the Veteran's psychiatric complaints. However, additional VA examination regarding IBS was conducted in May 2011. At that time, the examiner noted that the claims folder was reviewed. The Veteran had a pattern of alternating diarrhea and constipation. Periods alternated with a frequency of approximately 5 to 7 days. The Veteran had difficulty adjusting to his medications to control his stools. He also reported that when he was constipated for periods of 5 days or so, he would experience abdominal cramping prior to having liquid stools. Then, the cramping dissipated. He had about 2 episodes per month where he had a sudden urge and had to find a bathroom immediately. He showed no constitutional symptoms such as weight loss, fever, chills, blood in the stool, fatigue, myalgia, or arthralgia, and no history of fistula. The Veteran said that he was worried about being able to take breaks when employed. The examiner further noted that the Veteran was not currently employed but this was related more to his psychiatric medications. The Veteran also was able to do any amount of lifting. The examiner also opined that the Veteran's IBS would not preclude him from engaging in full time employment, to include sedentary work, noting that the Veteran's weight "has been stable and he feels well." Additional treatment records, to include virtual records showing treatment at a VA facility through late 2012 essentially reflect treatment for psychiatric symptoms. His mother submitted an April 2012 statement in which she noted that the Veteran sometimes had to rush to restrooms and sometimes soiled his pants, and that the Veteran avoided some foods due to his IBS. For the period prior to May 6, 2011, the Veteran's IBS is rated as 10 percent disabling. However, under the applicable rating criteria, a 30 percent rating alternatively requires either chronic diarrhea with more or less constant abdominal pain, or alternating diarrhea and constipation with more or less constant abdominal pain, and while the Veteran did not describe alternating diarrhea and constipation prior to May 6, 2011, he had experienced chronic daily diarrhea at the rate of 1 to 2 times a day that was preceded by abdominal pain. Therefore, giving the Veteran the benefit of the doubt, the Board finds that the Veteran was entitled to the maximum rating of 30 percent for his service-connected disorder for the entire period on appeal prior to May 6, 2011. The Board finds that an increased rating in excess of 30 percent is not warranted for for any period during the time frame on appeal under DC 7319. Simply put, the Veteran's IBS is now rated at 30 percent for the entire period on appeal and 30 percent is the highest schedular evaluation which can be assigned under this DC. The Board additionally finds that no other DC pertaining to the digestive system in 38 C.F.R. § 4.114 provides for a rating in excess of 30 percent based on the symptomatology exhibited by the Veteran of abdominal distress, diarrhea and constipation. While the Board has also considered the DC applicable to ulcerative colitis, DC 7323, this would also not provide a basis for an increased rating. More specifically, for a rating in excess of 30 percent there must be evidence of severe attacks with malnutrition but malnutrition has not been shown. In reaching this decision, the Board has considered the Veteran's statements and the other lay evidence of record. However, even affording the Veteran full competence and credibility, with the exception of the assignment of a 30 percent rating for the period prior to May 6, 2011, nothing in the lay evidence provided shows the Veteran's symptoms have more closely approximated the criteria for a higher evaluation at any point during the period of the appeal. See Fenderson v. West, 12 Vet. App. 119 (1999). Extraschedular consideration The Board has also considered whether the Veteran's IBS disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology; thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluations are, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). The Board further notes that the Veteran was not hospitalized for his IBS during the appeal period. Consequently, referral for extraschedular consideration is not warranted. Finally, there is no evidence and the Veteran has not contended that this disorder precludes him from engaging in or maintaining gainful employment. Consequently, the Board does not find that the record has raised an implied claim for a total disability rating based on individual unemployability pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). In summary, after reviewing the totality of the relevant evidence, the Board concludes that the preponderance of the evidence is against entitlement to an initial evaluation in excess of 30 percent. It follows that there is not a state of equipoise of the positive evidence with the negative evidence to permit more favorable determinations pursuant to 38 U.S.C.A. § 5107(b) (2012). Earlier Effective Date The Veteran filed a claim for service connection for IBS on January 10, 2007. In a February 2007 statement, he reported that he experienced diarrhea during service and continued to suffer from gastrointestinal distress after service. As noted earlier, service connection was established for IBS upon rating action in February 2007. The RO granted service connection from the date that the Veteran filed his claim on January 10, 2007. It is the Veteran's assertion that the effective date for the grant of service connection for IBS should be earlier as he was treated for this condition during service. In general, the effective date for the grant of service connection based upon an original claim or a claim reopened after final disallowance is either the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise it will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(b)(1) (West 2002 & Supp. 2012); 38 C.F.R. § 3.400(b) (2012). For effective date purposes, a claim is a formal or informal written communication identifying and requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p) (2012). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris, may be considered an informal claim. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year after the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (2012); Norris v. West, 12 Vet. App. 413, 421 (1999). After a review of the contentions and evidence in this case, the Board finds no legal basis for the assignment of an effective date for the award of service connection prior to January 10, 2007. That statement in support of claim is the earliest correspondence from the Veteran in the claims file relating to a claim for IBS. While there was an earlier claim for PTSD in March 2004, there was no mention of IBS. There is nothing in the record that could be interpreted as an earlier claim, formal or informal, for service connection for IBS prior to January 10, 2007. The Veteran's essential contention that an effective date following the day after separation from service is warranted is contrary to law. Rather, the law provides only that an effective date of the day following separation from service is warranted if a claim is received within the first post-service year. 38 C.F.R. § 3.400(b)(2)(i) (2012). Here, no claim for IBS was filed. The Board also finds that the 2006 private medical records whereon gastrointestinal complaints were mentioned cannot serve as an earlier claim. First, the records were not received until several years following the initiation of the claim. Moreover, the Court in Criswell v. Nicholson, 20 Vet. App. 501 (2006) in pertinent part held that the mere existence of medical records generally cannot be construed as an informal claim; rather, there must be some intent by the claimant to apply for a benefit. See also Brannon v. West, 12 Vet. App. 32, 35 (1998); 38 C.F.R. § 3.155(a) (2012). It has been held that an intent to apply for benefits is an essential element of any claim, whether formal or informal, and, further, the intent must be communicated in writing. Criswell, citing MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations require a claimant to have an intent to file a claim for VA benefits); also citing Rodriguez v. West, 189 F.3d 1351, 1353 (Fed. Cir. 1999) (noting that even an informal claim for benefits must be in writing); also citing Brannon v. West, 12 Vet. App. 32, 35 (1998). In summation of the Board's findings, prior to January 10, 2007, there was no pending claim for service connection for IBS. The private treatment reports showing gastrointestinal complaints in 2006 cannot serve as a formal or informal claim for service connection. As such, an effective date prior to the date of receipt of the Veteran's claim for service connection is legally precluded. The controlling statute and regulation provide that the effective date for a grant of service connection is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a) (2012); 38 C.F.R. § 3.400(b)(2)(i) (2012). Here, there is no dispute. The Veteran has asserted that entitlement arose prior to the date of claim. There was treatment during service for diarrhea, and the records show post service treatment and/or complaints of gastrointestinal symptoms as early as 2006, several years after discharge. The Veteran filed his initial claim for service connection for IBS on January 10, 2007. Clearly, the claim was not filed within the first post service year, so the effective date cannot be the date after separation from service. It follows, according to 38 C.F.R. § 3.400, that the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. In this case, the latter of the two dates is January 10, 2007. Thus, that is the appropriate effective date. 38 U.S.C.A. § 5110(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.400(b)(2)(i) (2012). The pertinent legal authority governing effective dates is clear and specific, and the Board is bound by such authority. See 38 U.S.C.A. § 7104(c) (West 2002 & Supp. 2012); 38 C.F.R. § 20.101(a) (2012). As there is no legal basis for assignment of any earlier effective date than January 10, 2007, the Board finds that an earlier effective date for the grant of service connection for IBS is not warranted. Where, as here, the law, and not the evidence, is dispositive, the appeal must be denied as without legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to an initial 30 percent, but not higher, rating for irritable bowel syndrome (IBS) prior to May 6, 2011, is granted, subject to the statutes and regulations governing the payment of monetary benefits. Entitlement to an initial rating in excess of 30 percent for IBS is denied. Entitlement to an effective date earlier than January 10, 2007, for the grant of service connection for IBS is denied. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs