Citation Nr: 1330893 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 09-13 578 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an initial rating higher than 10 percent for dismobility intestinal disorder. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. Edwards, Counsel INTRODUCTION Please note 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 Veteran had active service from May 1968 to November 1970. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In a March 2009 rating decision, the RO granted an increased initial evaluation of 10 percent for dismobility intestinal disorder, effective January 31, 2008. Despite the grant of this increased initial evaluation, the Veteran has not been awarded the highest possible evaluation. As a result, he is presumed to be seeking the maximum possible evaluation. The issue remains on appeal, as the Veteran has not indicated satisfaction with the rating. A.B. v. Brown, 6 Vet. App. 35 (1993). In August 2011, December 2012, and April 2013, the Board remanded this claim for additional development. That development having been completed, the claim is now ready for appellate review. FINDING OF FACT The Veteran's dismobility intestinal disorder is not manifested by partial obstruction with delayed motility of barium meal and less frequent and less prolonged episodes of pain. CONCLUSION OF LAW The criteria for an initial rating higher than 10 percent for dismobility intestinal disorder are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.112, 4.114, Diagnostic Code 7301 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The VA has a duty to provide specific notification to the Veteran and assist him with the development of evidence pursuant to the Veterans Claims Assistance Act (VCAA). The Veteran's claim for an increased rating arises from his disagreement with the initial evaluation following the grant of service connection. It has been held that once service connection is granted, the claim is substantiated and additional 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). As to VA's duty to assist, the Board notes that pertinent records from all relevant sources identified by the Veteran, and for which he authorized VA to request, have been obtained. 38 U.S.C.A. § 5103A. VA has associated service treatment records and post-service medical records with the claims folder. Additionally, the Veteran was afforded VA examinations. Virtual VA records and Social Security records have also been reviewed. The Board notes that the Veteran did not undergo an endoscopy, as directed in the April 2013 Board remand; however, in July 2013, a VA examiner noted that while the December 2011 endoscopy revealed mild to moderate gastritis, the Veteran's current complaints do not relate to gastritis. As such, the Board finds that a new endoscopy is not necessary. In light of the foregoing, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced by the Board's adjudication of the claim. II. Entitlement to an Initial Rating Higher than 10 Percent for Dismobility Intestinal Disorder The Veteran seeks an increased rating for his dismobility intestinal disorder. He asserts his disability is more severe than what is represented by a 10 percent rating. Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the current appeal arises from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has considered the entire record, including the Veteran's treatment records. These show complaints and treatment, but will not be referenced in detail. The Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Therefore, the Board will discuss the evidence pertinent to the rating criteria and the current disability. The Veteran's dismobility intestinal disorder is rated as 10 percent disabling under Diagnostic Code 7301. Under these criteria, a 10 percent rating is warranted for moderate adhesions of the peritoneum with pulling pain on attempting work or aggravated by movements of the body, or occasional episodes of colic pain, nausea, constipation (perhaps alternating with diarrhea) or abdominal distension. See 38 C.F.R. § 4.114, Diagnostic Code 7301. The next higher rating of 30 percent is warranted for moderately severe adhesions of the peritoneum, with partial obstruction manifested by delayed motility of barium meal and less frequent and less prolonged episodes of pain. Id. The highest rating available, 50 percent, is warranted for severe adhesions of the peritoneum with definite partial obstruction shown by x-ray with frequent and prolonged episodes of severe colic distension, nausea or vomiting, following severe peritonitis, ruptured appendix, perforated ulcer, or operation with drainage. Id. A note indicates that ratings for adhesion will be considered when there is a history of operative or other traumatic or infectious (intraabdominal) process, and at least two of the following: disturbance of motility, actual partial obstruction, reflex disturbances, or presence of pain. Id. The Veteran was afforded a VA examination in March 2008. It was noted that the Veteran was injured in an explosive blast while in service and suffered severe shrapnel wounds to the abdomen. During service, he underwent an exploratory laparotomy and incidental appendectomy for his extensive wounds. Currently, the Veteran experienced abdominal pain and bloating in his stomach. It was noted that there were no current treatments and he had not been hospitalized for his disability since his initial injury. There were noted episodes of abdominal colic, nausea, or vomiting and abdominal distension, occurring once a month, which were moderate in severity. The Veteran was noted to also experience pulling pain aggravated by movements. He reported having diarrhea less than weekly. Examination revealed no signs of significant weight loss or malnutrition. X-rays demonstrated no esophageal strictures, and no evidence of gastroesophageal reflux. There was suggestion of diffuse fold thickening involving the stomach, which was suspicious for gastritis. It was noted that an endoscopy would be more accurate. In November 2011, the Veteran was afforded a VA examination. The Veteran complained of a generalized pain in the abdomen, which was not localized. He had no reported nausea, vomiting, or heartburn. It was noted that he had lost weight, from 172 pounds in 2008 to 164 pounds, some of which he attributed to the death of his wife in 2011. The Veteran reported having one bowel movement per week since active service and that there was a definite urgency to go to the bathroom. There was no blood in the stools. The examiner noted that an upper gastrointestinal series (UGI) in 2008 showed possible gastritis but no esophagogastroduodenoscopy (EGD) was completed. The examiner stated that the Veteran had nonspecific abdominal discomfort that was more likely than not associated with probable adhesions secondary to the wounds and surgical procedures that occurred to repair his injuries in service. The examiner noted that the Veteran may also have gastritis, but an EGD must confirm it. The examiner stated that the Veteran's symptoms were not suggestive of gastritis, other than bloating, and that his major symptom of pain fit better with adhesions. After an upper endoscopy and biopsies, it was noted that the Veteran had minimal to mild gastritis with no evidence of heliobacteria. The examiner again noted that the Veteran's abdominal pain was more likely than not secondary to abdominal wounds caused by shrapnel while on active duty. In a June 2013 VA addendum opinion, it was noted that the Veteran experienced one bowel movement a week, with lower abdominal cramping pain. The examiner noted that the Veteran did not take any medication directed toward defecatory dysfunction. The examiner stated that the Veteran felt his symptoms, "should be rated greater than 10 percent, say 20 percent. I agree with him." Additionally, an addendum obtained in July 2013 noted that there was no evidence of partial bowel obstruction and that the Veteran's complaints did not relate to gastritis but rather to lower abdominal pain associated with defecation. Importantly, the examiner noted that there was no radiographic evidence of bowel obstruction. Although the Veteran and the examiner have stated they feel as though the Veteran should be rated higher, at 20 percent, unfortunately, there is no 20 percent rating available for the Veteran's disability. As stated previously, to warrant the next higher rating of 30 percent, the Veteran must have moderately severe adhesions of the peritoneum, with partial obstruction manifested by delayed motility of barium meal and less frequent and less prolonged episodes of pain. See 38 C.F.R. § 4.114, Diagnostic Code 7301. Unfortunately, there is no evidence of partial obstruction. In fact, the VA addendum in July 2013 stated that there was no radiographic evidence of bowel obstruction. As such, the Board finds that the Veteran's current rating of 10 percent appropriately compensates the Veteran for the severity of his disability. The Board notes that the Veteran is competent to give evidence about what he experiences; for example, he is competent to discuss current pain and other experienced symptoms. See Layno v. Brown, 6 Vet. App. 465 (1994). Furthermore, the Board finds the Veteran's statements to be credible. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). However, there is simply no evidence of record that would entitle the Veteran to the next higher rating of 30 percent, as there is no evidence of partial obstruction. The Board has also considered whether any alternate Diagnostic Codes allow for a higher evaluation, for example, gastritis (Diagnostic Code 7307) and irritable colon syndrome (Diagnostic Code 7319). However, the Board notes that multiple VA examiners have stated the Veteran's current symptoms are not related to his gastritis. Additionally, to warrant a 30 percent rating under irritable colon syndrome, the Veteran must have severe diarrhea or alternative diarrhea and constipation with more or less constant abdominal distress. During the March 2008 VA examination, it was noted that the Veteran had episodes of abdominal symptoms one day a month, which were moderate in severity. Additionally, VA treatment records do not indicate any treatment for bowel or stomach problems. For example, during treatment at a VA outpatient center in November 2011, the Veteran denied constipation or diarrhea. As such, there is no evidence that the Veteran's disability is severe in nature. Furthermore, the August 2012 VA examiner stated that the Veteran's symptom of pain fit better with the diagnosis of adhesions. Thus, the Board finds that Diagnostic Code 7301, for adhesions of the peritoneum, is the most appropriate. III. Extraschedular Evaluation The VA Schedule of Disability Ratings will apply unless there are exceptional or unusual factors that would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon 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 that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's 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. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the Veteran's dismobility intestinal disorder is inadequate. A comparison of the level of severity and symptomatology of the Veteran's disability with the established criteria found in the rating schedule shows that the rating criterion reasonably describes the Veteran's disability level and symptomatology. The Board further observes that, even if the available schedular evaluation for the disability is inadequate (which it manifestly is not), the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms." The record does not show that the Veteran has required any hospitalizations for his disability. Additionally, there is no evidence in the medical records of an exceptional or unusual clinical picture - the Veteran is not currently receiving any medical treatment for his disability. In short, there is nothing in the record to indicate that the disability on appeal causes impairment with employment over and above that which is contemplated in the assigned schedular ratings. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). The Board therefore has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. ORDER Entitlement to an initial rating higher than 10 percent for dismobility intestinal disorder is denied. ____________________________________________ JENNIFER HWA Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs