Citation Nr: 1329840 Decision Date: 09/18/13 Archive Date: 09/25/13 DOCKET NO. 10-12 899 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to an initial disability rating in excess of 30 percent for service-connected Crohn's disease. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. M. Kreitlow INTRODUCTION The Veteran had active military service with the Army from May 2000 to September 2000 and February 2003 to April 2004, with service in Kuwait/Iraq from April 2003 to March 2004. Subsequently he had active military service with the Air Force National Guard from February 2005 to May 2005 and April 2006 to September 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island, which granted service connection for Crohn's disease and evaluated it as 30 percent disabling effective May 7, 2008. FINDINGS OF FACT 1. Prior to August 9, 2011, the evidence of record fails to demonstrate that the Veteran's Crohn's disease was productive of severe ulcerative colitis with numerous attacks a year and malnutrition with health only fair during remissions. 2. As of August 9, 2011, the evidence demonstrates that the Veteran's Crohn's disease had worsened and is productive of severe ulcerative colitis with numerous attacks in the last year (greater than 12) that are manifested by sharp abdominal pain and diarrhea four to six times a day lasting one day or less; weekly constipation; loss of significant weight (over 25 pounds) with weight being labile (ranging from 175 to 190 pounds); episodes of tenesmus throughout the week; dizziness several times a week; anxiety; and significant effects on his occupation. His Crohn's disease is not, however productive of pronounced ulcerative colitis resulting in marked malnutrition, anemia and general debility, or with serious complication as liver abscess. CONCLUSIONS OF LAW 1. Prior to August 9, 2011, the criteria for a disability rating in excess of 30 percent for service-connected Crohn's disease were not met. 38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, and 4.114, Diagnostic Code 7323 (2012). 2. As of August 9, 2011, the criteria for a 60 percent disability rating, but no higher, have been met. 38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, and 4.114, Diagnostic Code 7323 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance Requirements VA's duties to notify and assist claimants in substantiating a claim for VA benefits are described in 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 and 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and notify the claimant and his or her representative, if any, of what information and evidence not already provided, if any, is necessary to substantiate, or will assist in substantiating, each of the five elements of the claim including notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Sufficient notice must inform the claimant (1) of any information and evidence not of record that is necessary to substantiate the claim; (2) of the information and evidence that VA will seek to provide; and (3) of the information and evidence that the claimant is expected to provide. Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). For an increased-compensation claim, section 5103(a) requires, at a minimum, that the Secretary (1) notify the claimant that to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment; (2) provide examples of the types of medical and lay evidence that may be obtained or requested; (3) and further notify the claimant that "should an increase in disability be found, a disability rating will be determined by applying relevant [DCs]," and that the range of disability applied may be between 0 percent and 100 percent "based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment." Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270, (Fed. Cir. 2009). In this case, notice was sent to the Veteran in July 2008, prior to the initial adjudication of his claim for service connection. Subsequent notice compliant with Vazquez-Flores was provided to the Veteran in August 2009. Although compliant notice was not sent to the Veteran until August 2009, the Board notes that the Veteran's claim was originally one for service connection for his Crohn's disease, which was granted in the December 2008 rating decision and evaluated as 30 percent disabling effective May 7, 2008. Thereafter, the Veteran disagreed with the 30 percent evaluation of this now service-connected disability. Consequently, since the Veteran's claim was initially one for service connection, which has been granted, the Board finds that VA's obligation to notify him was met as the claim for service connection was obviously substantiated. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Therefore, any deficiency in either the timing or content of the August 2009 notice relating to the Veteran's appeal for an increased rating is not prejudicial to him. With respect to VA's duty to assist, VA is only required to make reasonable efforts to obtain relevant records that the Veteran has adequately identified to VA. 38 U.S.C.A. § 5103A(b)(1). All efforts have been made to obtain relevant, identified and available evidence. The duty to assist includes providing the Veteran a thorough and contemporaneous examination. Green v. Derwinski, 1 Vet. App. 121 (1991). The Veteran was afforded VA examinations in November 2008 and August 2011. Significantly, the Board observes that he does not report that the condition has worsened since he was last examined, and thus a remand is not required solely due to the passage of time. See Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). The reports of these examinations reflect that the examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate physical examinations, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The Board, therefore, concludes that these examination reports are adequate for purposes of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2; see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran and his representative have not contended otherwise. Thus, the Board finds that VA has satisfied its duties to inform and assist the Veteran. Additional efforts to assist or notify him would serve no useful purpose. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis Service connection for Crohn's disease was established in the December 2008 rating decision, which was initially evaluated as 30 percent disabling, effective May 7, 2008. The Veteran has disagreed with the initial 30 percent disability rating assigned claiming that his condition is worse than this rating reflects. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. Evaluation of a service-connected disorder requires a review of the veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1 and 4.2. It is also necessary to evaluate the disability from the point of view of the veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the veteran's favor, 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to the veteran's disability, 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 claim for a higher evaluation is an original claim that was placed in appellate status by his disagreement with the initial rating award. In these circumstances, separate ratings may be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Lay testimony is competent regarding features or symptoms of injury or disease when the features or symptoms are within the personal knowledge and observations of the witness. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Furthermore, lay evidence is considered competent and sufficient to establish a diagnosis of a condition when 1) a lay person is competent to identify the medical condition; 2) the lay person is reporting a contemporaneous medical diagnosis; or 3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board notes that there is not a diagnostic code specifically for Crohn's disease. When an unlisted condition is encountered, it is permissible to rate the condition under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. 38 C.F.R. § 4.27. Any change in a diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). The Veteran's Crohn's disease is evaluated under Diagnostic Code 7323 as analogous to ulcerative colitis. Diagnostic Code 7323 provides for a 10 percent evaluation for moderate ulcerative colitis with infrequent exacerbations. A 30 percent evaluation requires moderately severe ulcerative colitis with frequent exacerbations. A 60 percent evaluation is warranted for severe ulcerative colitis with numerous attacks a year and malnutrition and health only fair during remissions. A 100 percent evaluation is warranted for pronounced ulcerative colitis resulting in marked malnutrition, anemia, and general debility or with serious complication as liver abscess. 38 C.F.R. § 4.114, Diagnostic Code 7323. Service treatment records for the period of active duty from May through September 2006 demonstrate that the Veteran was seen in May 2006 with a complaints of abdominal pain and constipation of three days duration. He was treated with laxatives. In July 2006, he reportedly was seen on the 6th in the emergency room of a private hospital for blurred vision and disorientation. He was seen in sick call on the 28th for follow up and described symptoms of upset stomach, lightheadedness, and nausea occurring while eating. He reported a similar episode about one month prior. On September 7, 2006, he presented to the emergency room at the private hospital again with acute onset of right lower quadrant pain with nausea and an elevated white blood count. On the 8th, a laparoscopic appendectomy for appendicitis was performed. After discharge from active duty, the Veteran was seen on October 21, 2006, by his private primary care physician with a complaint of dyspepsia. He denied any bowel trouble. The assessment was dyspepsia and questionable of inflammatory bowel syndrome. On October 26th, an abdominal CT scan revealed question of mild thickening of the terminal ileum and ileocecal valve suggestive of early Crohn's disease. On December 28th, the Veteran was again seen by his private primary care physician for continued abdominal discomfort. He denied diarrhea. The impression was a question of Crohn's disease and a gastrointestinal consult was ordered. On January 5, 2007, the Veteran underwent initial gastrointestinal consultation. At that time, he was noted to be asymptomatic. He denied any change in bowel habits or bleeding. On January 23rd, a colonoscopy was performed revealing a few areas of erythema in the ascending and sigmoid colon but no ulcerates were noted. The impression was acute ileitis - rule out Crohn's disease. Pathology was suggestive of an early inflammatory bowel disease such as Crohn's disease. On January 31st, the Veteran was seen for follow up with the gastroenterologist and was assessed to have early Crohn's disease involving the ileum and ascending colon. It was recommended that he begin on a low lactose diet and prescribed Pentasa. On February 8, 2007, the Veteran was seen by a second gastroenterologist for a second opinion. At that time, he reported intermittent nausea that did not occur on a weekly basis. He denied vomiting, dysphagia, odynophagia, or globus symptoms. He reported a good appetite and denied any significant weight change or early satiety. He denied any abdominal pain, bloating or cramping. With regards to his bowel habits, he reported moving his bowels two to three times a day on average, which had been his bowel pattern habit since childhood. He denied significant straining for stool. He reported his stools are formed in consistency and brown in color. He denied rectal pain or pressure. He did report occasional fecal urgency but denied fecal incontinence. He denied tenesmus. On follow up on May 30, 2007, the Veteran reported feeling well and denied nausea, vomiting, heartburn or dysphagia. He reported a good appetite and denied early satiety or significant weight change. He denied abdominal pain or bloating. He reported moving his bowels approximately one to two times a day on the average without significant straining for stool. He denied overt manifestations of gastrointestinal bleeding, including melena, hematochezia, or bright red blood per rectum. He stools were described as formed in consistency and brown in color. He denied tenesmus, incomplete evacuation, or fecal urgency or incontinence. On follow up visits with his private primary care physician in March and June of 2008, the Veteran was noted to be taking Entocort and reported doing well. In November 2008, the Veteran underwent VA examination. At that time, he reported his normal bowel pattern is two to three times per day with variable stool consistency from loose stools after eating certain foods (namely salads, fatty foods or dairy) to formed. He reported his bowel movements typically occur soon after eating. He rarely had nocturnal bowel movements. He did not use laxatives or anti-diarrheal medications. He had recently been weaned from Entocort EC, which he had been taking since approximately March 2008. He was trying to control his bowel movements with dietary modifications. He reported recent weight gain, which he attributed to the use of Entocort. His weight was noted to be 208.4 pounds. He reported occasional cramping and intermittent sharp, fleeting abdominal pain. He felt bloated. He denied nausea or vomiting. He stated he was working full time for the state of Rhode Island in law enforcement and denied any impact on his occupational functioning or activities of daily living. Physical examination was essentially normal. The examiner noted that all complete blood counts in the claims file were normal. The diagnosis was Crohn's disease. The next medical evidence of record is not until 2009. In April 2009, the Veteran underwent colonoscopy. The report notes the Veteran's weight was 210 pounds and he appeared well developed and well nourished. The impression was erythema and granularity in the terminal ileum compatible with Crohn's disease. Pathology report of biopsies taken shows final diagnosis relating to the terminal ileum of mild ileitis with neutrophilic cryptitis and modest mononuclear cell expansion of the lamina propria, consistent with minimally active Crohn's disease. The remaining biopsies of the cecum, ascending colon, transverse colon and descending colon were negative for evidence of active Crohn's disease. Follow up note from June 2009 with the Veteran's private gastroenterologist indicates he reported continued loose bowel movements, occurring at least three to four times a week. In between these episodes, he reported having normal bowel movements. He denied incomplete evacuation or tenesmus. He continued to report right lower quadrant pain, often worse in the morning. He reported rare nausea associated with pain, but denied vomiting, heartburn and abdominal bloating. He denied fever, chills, sweats, loss of appetite, chronic fatigue, malaise or change in weight. On physical examination, he was noted to be well developed, well nourished, of normal habitus and in no acute distress. In his assessment, this private physician noted that the recent colonoscopy showed an improvement compared to the prior colonoscopy performed in 2007. At this time, he was not on maintenance medication and was only taking a probiotic. Follow up note from October 2009 indicates the Veteran was restarted on Entocort and was feeling better since. He still complained of vague abdominal discomfort, usually localized in the right lower quadrant, though these episodes were fewer and less intense. He still reported loose bowel movements as well as occasional fecal urgency but denied outright diarrhea. He moved his bowels several times a day. He was compliant on Entocort; however, he admitted to a poor diet, heavy with greasy foods and fast foods for which his physician had a long discussion with him about the need for good dietary behavior. He also admitted he stopped taking the probiotic since starting back on Entocort. In August 2011, the Veteran underwent a review VA examination. At that time, the Veteran reported his condition had been progressively worsening. His current treatment included medication and diet. He reported he had been weaned off of Entocort and was currently on Lialda, which he stated was not as effective. He reported constipation weekly. He reported episodic diarrhea occurring more than 12 times in the prior year and lasting up to one day. During these episodes, he would have diarrhea four to six times a day. He also reported a history of intestinal pain in the right lower quadrant that he stated happens every time he tries to eat a meal and described as feeling like "it is ripping through me as it passes." He reported this happens several times a day lasting three to six hours and is severe. He also reported symptoms of bloating and fatigue. He stated that he suffers from dizziness a few times a week to the point that he feels like he is going to pass out, which causes him to become anxious and he has to take his anti-anxiety medication. He further described episodes of tenesmus throughout the week. It was noted that the Veteran continued to work full time for the state of Rhode Island as a police officer with the Department of Public Safety. He reported he had lost at least four weeks of work in the prior 12 months. On physical examination, his vital signs were essentially normal. His weight was 185 pounds, although he reported that it can fluctuate anywhere from 175 to 190 pounds. The examiner noted that the were no signs of significant weight loss or malnutrition and no signs of anemia (although the Board notes that no laboratory tests were conducted to confirm this). The assessment was Crohn's disease. The examiner stated that this has a significant effect on the Veteran's occupation in that it causes weakness or fatigue, as well as the Veteran stated he needs to use the bathroom frequently due to diarrhea, so he is limited to being near bathroom facilities. He stated he is easily fatigued and no longer has the stamina to perform many activities. He reported he was fortunate that his present employer was very understanding and allows him to leave early and arrive late as necessary. As for the effects on the Veteran's daily activities, the examiner stated his Crohn's disease has the following effects: none on shopping, feeding, bathing, dressing, toileting and grooming; and mild on chores; moderate on exercise, sports, recreation, and traveling. In its Informal Hearing Presentation, the Veteran's representative argued that the August 2011 VA examination shows that his Crohn's disease has worsened in the he now suffers from numerous attacks a year and has only fair health during remissions. His representative asserted that the evidence establishes that the criteria for a higher evaluation for Crohn's disease has been met especially when taking into account the functional impairment the symptoms cause under the ordinary conditions of life including employment. The Board agrees that the August 2011 VA examination shows a worsening in the Veteran's Crohn's disease such that his disability picture as established at that examination is more consistent with the criteria for a 60 percent disability rating than a 30 percent disability rating. Prior to that examination, however, the evidence fails to demonstrate that the Veteran's disability picture warrants a rating higher than 30 percent. The medical evidence of record prior to the August 2011 VA examination shows the Veteran's symptoms mainly consisted of intermittent abdominal discomfort, no change in bowel habits except for some loose stools but no diarrhea; no tenesmus; no weight loss; and no evidence of malnutrition or anemia. His appearance was characterized by the physicians as well developed and well nourished. Moreover, he did not specifically note episodes of increased symptoms but that his symptoms had remained consistent over time. Consequently, the Board finds that the evidence prior to August 2011 fails to demonstrate that the Veteran's Crohn's disease was productive of severe ulcerative colitis with numerous attacks a year and malnutrition with health only fair during remissions. The August 2011 VA examination, however, shows the Veteran had had numerous attacks over the prior year (more than 12) causing diarrhea with bowel movements four to six times a day. He also had what appears to be daily right lower quadrant pain that occurs after he eats lasting three to six hours at a time and described as severe. Furthermore, the Veteran described episodes of tenesmus, which he had previously denied having. He also reported bloating, fatigue, and dizziness several times a week of such severity he feels as if he will "pass out." He related that these symptoms have caused him to be easily fatigued and that he has lost stamina to perform many activities. He further related that this has affected his occupation in that he is limited in where he can perform his duties because he has to be near bathroom facilities. Moreover, he had lost at least four weeks of work in the prior year. Consequently, the Board finds that the VA examination shows the Veteran has numerous attacks a year with significant symptoms that affect his overall health and functioning. The Board acknowledges that the August 2011 VA examiner did not indicate there was significant weight loss, malnutrition or anemia. As for the Veteran's weight, however, the Board notes that the August 2011 VA examination shows a 25-pound decrease from his weight as reported in the 2009 medical records (185 pounds down from 210 pounds). Furthermore, the Veteran reported that his weight fluctuates between 175 and 190 pounds. Given the significant weight loss between 2009 and 2011 and the Veteran's report of fluctuations in his weight, the Board resolves reasonable doubt that this evidence reflects that the Veteran has some type of nutritional problem. He may not be malnourished in that he is overly thin or emaciated but that is not what the criteria require. The criteria only require a showing of malnutrition. The Board finds, however, that a disability rating higher than 60 percent is not warranted as the evidence fails to demonstrate pronounced ulcerative colitis resulting in marked malnutrition, anemia, and general debility, or that there are serious complications as liver abscess. Rather the evidence shows the Veteran has some evidence of malnutrition but not marked malnutrition. Although no laboratory test was done to rule out anemia, the examiner stated that there were no signs of anemia. Finally, the Board does not find that the evidence shows general debility as the Veteran is able to maintain full time employment and, although lacks stamina to do various activities, the examiner stated he is no more than moderately impaired in doing daily activities. Finally, the Board must consider whether the Veteran's disability warrants referral for consideration of an extraschedular rating under the provisions of 38 C.F.R. § 3.321(b). It is generally provided that the rating schedule will represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations resulting from a service-connected disability. 38 C.F.R. § 3.321(a). In the exceptional case, however, to accord justice, where the schedular evaluations are found to be inadequate, the Secretary is authorized to approve, on the basis of the criteria set forth in 38 C.F.R. § 3.321(b)(1), an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. 38 C.F.R. § 3.321(b). The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. Id. The Veteran's entire history is reviewed when making disability evaluations. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). Loss of industrial capacity is the principal factor in assigning schedular disability ratings. See 38 C.F.R. §§ 3.321(a), 4.1. Indeed, 38 C.F.R. § 4.1 specifically states: "[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." See also Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992) and Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). The Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that disability are inadequate. In other words, whether the disability picture presented in the record is adequately contemplated by the rating schedule. In doing so, 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 this disability. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. In the present case, the Board finds that the Veteran's disability picture is not so exceptional or extraordinary as to render the rating schedule to be inadequate to rate his disability. As previously discussed, the Board found that, given the disability picture of the Veteran's Crohn's disease, the criteria for a higher disability rating of 60 percent is more reflective of the Veteran's current impairment. Prior to that, his symptoms were no more than mild to moderate without any reports of specific episodes of exacerbations. The criteria for a 30 percent require the showing of moderate symptoms with infrequent exacerbations. Thus it appears, especially in 2009 when his private physician stated that his Crohn's disease had improved since 2007, that the 30 percent disability rating more than adequately compensated the Veteran for the impairment caused by his Crohn's disease. The Board further notes that the medical evidence does not show, nor has the Veteran claimed, that he has symptoms that are not contemplated by the rating criteria used to evaluate his Crohn's disease. Thus, the rating schedule is adequate to rate the Veteran's Crohn's disease as there is no showing of an exceptional or extraordinary disability. Consequently, the Board finds that the preponderance of the evidence is against finding that referral is warranted for consideration of an extraschedular rating. In conclusion, the Board finds that the preponderance of the evidence is against finding that a disability rating in excess of 30 percent is warranted prior to August 9, 2011, the date of the last VA examination; however, based upon that examination, a disability rating of 60 percent, but no higher, is warranted as the Veteran's disability picture is more consistent with the criteria for that rating. To the extent that a 60 percent disability rating is warranted as of August 9, 2011, the Veteran's appeal is granted. ORDER Prior to August 9, 2011, entitlement to an initial disability rating in excess of 30 percent for service-connected Crohn's disease is denied. As of August 9, 2011, entitlement to a 60 percent disability rating for service-connected Crohn's disease is granted, subject to controlling regulations governing the payment of monetary benefits. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs