Citation Nr: 1332987	
Decision Date: 10/22/13    Archive Date: 10/24/13

DOCKET NO.  11-14 701	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey


THE ISSUES

1. Entitlement to an initial increased rating for posttraumatic stress disorder (PTSD), evaluated as 70 percent disabling prior to March 16, 2010 and as 50 percent thereafter.  

2. Entitlement to an initial increased rating for irritable bowel syndrome (IBS) with gastroesophageal reflux disease (GERD), evaluated as 10 percent disabling, through March 9, 2010.  

3. Entitlement to an initial increased rating for irritable bowel syndrome (IBS) with gastroesophageal reflux disease (GERD), evaluated as 10 percent disabling, from March 10, 2010.  

4. Entitlement to an initial increased rating for migraine headaches, currently evaluated as noncompensable.  


REPRESENTATION

Appellant represented by:	National Association of County Veterans Service Officers


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Emily L. Tamlyn, Counsel


INTRODUCTION

The Veteran served on active military duty from October 2002 to October 2006 and from June 24, 2008 to November 22, 2009.  

These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Winston-Salem, North Carolina.  In that decision, the RO granted claims of service connection for PTSD (rated at 70 percent disabling prior to March 16, 2010 and at 50 percent thereafter); IBS with colon polyps rated at 10 percent disabling); GERD (noncompensable) and migraine headaches (noncompensable).  The Veteran disagreed with the ratings assigned in March 2011.  

As explained further below, IBS and GERD are not to be rated separately; instead only the predominant disability is to be rated.  As a result, the Board has recharacterized the issues on the title page of this decision.  

In September 2011, the Veteran testified at a Board hearing before the undersigned.  A copy of the transcript has been associated with the file.  

The instant decision awards an increased rating for the Veteran's gastrointestinal disability.  However, the evidence of record only addresses the time period through March 9, 2010.  It is possible that more recent evidence would enable a still-higher evaluation.  For this reason, the issue has been bifurcated to enable him to presently receive his award for the earlier time period, while development continues to determine the level of severity for the period following the last examination of record.  

The initial increased ratings for PTSD and for IBS with GERD from March 10, 2010, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  


FINDINGS OF FACT

1. Throughout the rating period up to March 10, 2010, the IBS with GERD is shown to be productive of a disability picture that more nearly approximates severe diarrhea with more or less constant abdominal distress.  

2. Throughout the entire rating period on appeal, the Veteran has experienced migraine headaches that are prostrating and that tend to occur once every two to three months.  


CONCLUSIONS OF LAW

1. The criteria for the assignment of an initial 30 percent evaluation for IBS with GERD through March 9, 2010 have been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.113, 4.114, Diagnostic Codes (DCs) 7319, 7346 (2013).  

2. Throughout the entire rating period on appeal, the criteria for an initial 10 percent disability rating, but not higher, for migraine headaches have been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8100 (2013).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VCAA

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. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013).  

Proper notice from VA must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.  

VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by re-adjudication of the claim.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The Veteran's claims arise from an appeal of the initial evaluation following the grant of service connection.  Courts have held that once service connection is granted the claim is substantiated, and additional notice is not required as 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 the Veteran in the development of the claims.  This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination.  Moreover, the statements in support of the claim are of record, including testimony provided at a September 2011 Board hearing before the undersigned.  The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified; at the hearing the Veteran stated that he was not currently receiving VA treatment.  (Transcript, p 6.)  The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims being decided herein.  

Further regarding the duty to assist, the Court has held that the provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam).  Here, the transcript of the September 2011 Board hearing shows that the Veteran furnished information regarding his increased ratings claims and responded to questions aimed at determining whether further information was needed to substantiate the claims.  He has not raised complaints regarding the conduct of the hearing.  His representative (present at the hearing) has also not raised complaints.  The Board therefore finds that the duties to notify and to assist have been met.  

For the IBS with GERD issue, this decision grants entitlement to an initial rating of 30 percent, and defers consideration of an evaluation in excess of 30 percent, pending completion of the development sought in the remand below.  Further assistance is not required to aid the Veteran in substantiating that matter decided in this decision.  

For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

Initial Increased Ratings

Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practicably be determined, on the average impairment of earning capacity.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013).  Each service-connected disability is rated on the basis of specific criteria identified by diagnostic codes (DCs).  38 C.F.R. § 4.27 (2013).  

In evaluating the severity of a particular disability, it is essential to consider its history.  38 C.F.R. §§ 4.1 and 4.2 (2013).  Also, the entire rating period is considered for the possibility of staged ratings.  Consideration will be given to the possibility of separate ratings for separate periods of time based on the facts found.  Fenderson v. West, 12 Vet App 119 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007).  

However, as will be discussed, no staged ratings are warranted by the evidence in the file.  

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2) (2013).  

The Board finds the Veteran to be both competent and credible in report of his symptoms involved with the disabilities on appeal.  See Washington v. Nicholson, 19 Vet. App. 362 (2005).  Moreover, such reports are deemed credible here.  See Tatum v. Shinseki, 23 Vet. App. 152, 155 (2009) (noting that the Board's failure to discuss a veteran's report of symptoms combined with a failure to address her credibility rendered its statement of reasons or bases inadequate).  

IBS with GERD: Prior to March 10, 2010

As background, in September 2010, the RO granted service connection for IBS with colon polyps and assigned an evaluation of 10 percent from the date of separation from service and DC 7344-7319.  The RO also granted service connection for GERD, which was noncompensable and DC 7399-7346 for a hiatal hernia.  

At the September 2011 Board hearing, the Veteran stated that he received some in-service and VA treatment for his IBS, but it did not help.  (Transcript, p 14.)  He stopped taking medication and tried to control this issue with diet.  (Transcript, p 15-16.)  His symptoms included explosive diarrhea, alternating constipation, constant abdominal distress, and uncontrollable fecal discharge.  (Transcript, pp 15, 17.)  

The Veteran also discussed GERD at the hearing.  He stated that he did not attend VA appointments because they could not meet his schedule.  (Transcript, p 19.)  He tried to control GERD with his diet, but certain foods gave him problems.  (Transcript, p 20.)  His symptoms included daily vomiting (before meals), arm and shoulder pain, weight fluctuations (loss of 15 pounds in two weeks), constipation, and gas.  (Transcript, p 22-24.)  GERD hampered his social life.  (Transcript, p 25.)  

The severity of a digestive system disability is ascertained, for VA rating purposes, by application of the criteria set forth in VA's Schedule for Rating Disabilities at 38 C.F.R. § 4.114 (2013).  Ratings under DCs 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 inclusive, will not be combined with each other.  Instead, a single evaluation will be assigned under the DC which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation.  Id.  As explained further in 38 C.F.R. § 4.113 (2013), certain coexisting abdominal diseases do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding.  See also 38 C.F.R. § 4.14 (2013).  

Here, GERD and IBS are the type of coexisting conditions to which § 4.114 refers.  The Board has determined that their overall disability picture warrants elevation to the next-higher evaluation.  

The Board must evaluate disabilities under multiple DCs to determine if there is any basis to increase the assigned rating.  Such evaluations involve consideration of the level of impairment of a veteran's ability to engage in ordinary activities, to include employment, as well as an assessment of the effect of pain on those activities.  38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 (2013).  

IBS is an unlisted condition in the rating schedule.  When an unlisted condition is encountered, it is permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous.  Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings.  Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin.  38 C.F.R. § 4.20.  

IBS is rated by analogy to irritable colon syndrome pursuant to 38 C.F.R. § 4.114, DC 7319; the anatomical area and symptomatology are closely analogous.  38 C.F.R. § 4.20.  

Under DC 7319, concerning irritable colon syndrome (spastic colitis, mucous colitis, etc.), a 0 percent rating is assigned for mild symptoms (disturbance of bowel function with occasional episodes of abdominal distress).  A 10 percent rating is assigned for moderate symptoms (frequent episodes of bowel disturbance with abdominal distress).  The highest rating, 30 percent, is awarded for severe symptoms (diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress).  

Often GERD is rated analogously to hiatal hernia under 38 C.F.R. § 4.114, DC 7346, because the anatomical area and symptomatology are closely analogous.  38 C.F.R. § 4.20.  According to DC 7346, a 10 percent rating is assigned for a hiatal hernia with two or more of the symptoms of less severity for the 30 percent rating.  A 30 percent rating is assigned for a hiatal hernia with persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health.  A 60 percent rating is assigned for a hiatal hernia with symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health.  

A September 2009 VA psychology report shows the Veteran reported IBS and vomiting.  In September, a VA primary care record shows the Veteran was to continue his medication.  A colonoscopy had showed hemorrhoids and a sessile polyp.  A test had revealed gastritis.  

A March 2010 VA examination report shows that he had occasional diarrhea but no abdominal pain.  He also had colon polyps but they were removed.  He had no abdominal pain.  He had diarrhea about once a week with no constipation.  Denied  nausea or vomiting.  (However, a March 2010 VA neurological examination showed that he had nausea and, at times, vomiting.)  He did not have colitis or irritable bowel disease.  He took no medications and his condition had been stable over time.  The diagnosis was IBS with no functional impairment or incontinence.  

Also at the March 2010 VA examination, the Veteran stated that he had reflux since service in 2008.  He was off medication and had modified his diet.  The report indicated that he got heartburn once a day for a few minutes.  He did not have abdominal pain, but stress made his heartburn worse.  The diagnosis was GERD, with no functional impairment.  

The evidence shows that although the Veteran reported abdominal distress at the hearing, he did not report it at the VA examination.  He also did not complain of daily vomiting at the VA examination.  However, the Board finds the Veteran was candid in relating his symptoms at the Board hearing.  Resolving doubt in his favor, an increased rating to 30 percent is warranted.  This represents the highest available rating under DC 7319.  Moreover, a higher rating under DC 7346 is not warranted, as there is no showing of material weight loss and hematemesis or melena with moderate anemia; or, other symptom combinations productive of severe impairment of health.  In so finding, the Board again notes that the Veteran was not on medication for this disorder during the period in question.  The symptoms of heartburn, nausea and vomiting are deemed to be contemplated by the now-assigned 30 percent evaluation.

As explained below in the remand, as noted, the question of entitlement to a rating in excess of 30 percent for IBS with GERD (to include the extraschedular discussion) is deferred, pending development sought in the remand below.  

Migraine Headaches

At the September 2011 Board hearing, the Veteran stated that he was not taking medication for headaches.  (Transcript, p 26.)  He got migraines at least once a week and which were from 6 to 8/10 in severity.  (Transcript, p 28.)  However, some were "way the off scale" or "like 20" in terms of pain; this happened every two or three months.  (Transcript, p 27.)  When he had a headache, he had to lie down, close his eyes (he was photosensitive) and take deep breaths.  (Transcript, p 28.)  His prostrating attacks lasted an hour to four hours.  (Transcript, p 29.)  He "saw spots" or had an aura during the headache.  (Transcript, p 30.)  The Veteran's representative asserted a 10 percent rating was warranted based on the symptoms.  (Transcript, p 33.)  

Considering the rating criteria for migraine headaches, DC 8100 assigns a 10 percent rating for headaches with characteristic prostrating attacks averaging one in 2 months over the last several months.  A 30 percent rating is assigned for headaches with characteristic prostrating attacks occurring on average once a month over the last several months.  Finally a 50 percent rating is assigned for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.  38 C.F.R. § 4.124a, DC 8100 (2013).

In a December 2009 VA primary care record, the Veteran denied headaches.  In March 2010, at a general medical VA examination, he indicated that he started having migraines in the military.  He had bi-frontal headaches twice daily.  He took no medications.  The condition had been stable over time.  

At a March 2010 VA neurological examination, the examiner stated that headaches were mostly a bi-frontal moderately severe type of sensation and a mixture of sharp and throbbing sensations that lasted from several hours to a day.  They occurred two to three times per week.  The headaches were associated with nausea and, at times, with vomiting.  A computed tomography scan from 2009 was normal.  He usually had some degree of mild but chronic daily headaches.  He alleviated headaches by sleeping or resting; he could continue activities and daily routine (he was going to school).  His headaches were not severe or prostrating and have not required any emergency room visits.  There was no history of head trauma.  

Here, the Board finds the Veteran was credible at the hearing in his report of prostrating attacks about once every two or three months.  While he only reported daily headaches of less severity at the VA examination, he also acknowledged he had these milder headaches at the hearing as well.  The Board will resolve doubt in his favor and assign a 10 percent rating.  38 C.F.R. § 4.124a, DC 8100.  

Considering all of the evidence, including the Veteran's testimony, the Board does not find that the headaches justify a still-higher rating because characteristic prostrating attacks once a month or more frequently were not reported.  

Extraschedular considerations

For exceptional cases, an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities may be awarded.  38 C.F.R. § 3.321 (b)(1) (2013).  In Thun v. Peake, 22 Vet. App. 111 (2011), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted.  Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe a veteran's disability level and symptomatology.  Id. at 115.  If the schedular rating criteria do reasonably describe a veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops.  

The Board has considered step one under Thun, 22 Vet App 111, and finds the schedular rating to be fully adequate in this case.  The Veteran described his GERD and headache symptoms, which are typical for his disability and encompassed in the schedule via reference to "attacks."  The Board finds the pertinent rating criteria, as detailed above, accurately describes the severity and symptoms of the service-connected GERD (prior to March 10, 2010) and migraine headaches.  The evidence does not present an exceptional disability picture.  

In sum, the Board finds that a 10 percent evaluation is warranted throughout the rating period in question for the service-connected migraine headaches.  See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013).  


ORDER

For the period prior to March 10, 2010, an initial 30 percent disability rating, but not higher, for IBS with GERD is granted.  

For the entire rating period on appeal, an initial 10 percent disability rating is granted.  



REMAND

The Board finds the most recent VA examination for PTSD fails to explain the impact of the disability on occupational and social impairment; apparently the Veteran is currently attending school (see March 2010 VA examination for the feet).  Such an explanation is important for rating this disability.  38 C.F.R. § 4.130, DC 9411.  On remand, the Veteran should receive a new VA examination and opinion should be given on his level of functioning since separation from service.  See Chotta v. Peake, 22 Vet. App. 80 (2008) (allowing for retrospective medical opinions).

Regarding the Veteran's IBS with GERD, for the period from March 10, 2010, the Veteran stated at the September 2011 Board hearing that he had experienced weight loss (loss of 15 pounds in two weeks).  (Transcript, pp 22-24.)  The Board finds a remand is required to address whether he currently has material weight loss; hematemesis, or melena with moderate anemia; or any other symptoms combinations that are productive of severe impairment of health.  See 38 C.F.R. § 4.114, DC 7346.  In characterizing weight loss, the examiner should consider 38 C.F.R. § 4.112, which explains: 

The term "substantial weight loss" means a loss of greater than 20 percent of the individual's baseline weight, sustained for three months or longer; and the term "minor weight loss" means a weight loss of 10 to 20 percent of the individual's baseline weight, sustained for three months or longer.  The term "inability to gain weight" means that there has been substantial weight loss with inability to regain it despite appropriate therapy.  "Baseline weight" means the average weight for the two-year-period preceding onset of the disease.  Id.  

Accordingly, the case is REMANDED for the following action: 

1. Schedule the Veteran for a VA examination to determine the current nature and severity of his PTSD as well as to determine its overall severity since separation from service.  The claims folder and a copy of this remand must be made available to the examiners in conjunction with the examination.  A notation to the effect that a records review took place should be included in the report.  All necessary testing should be conducted.  

The examiner is requested to determine:
* all current manifestations associated with the Veteran's service-connected PTSD and to comment on their severity;

* the degree of social and occupational impairment caused by the Veteran's PTSD currently and since separation from service; 

* and the current Global Assessment of Functioning (GAF) scale score.  

A complete rationale for any opinion expressed and conclusion reached should be set forth in a legible report.  

2. Schedule the Veteran for a VA examination to address the current nature and severity of his IBS with GERD.  The claims folder and a copy of this remand must be made available to the examiners in conjunction with the examination.  A notation to the effect that a records review took place should be included in the report.  All necessary testing should be conducted.  

The examiner should specifically state the following:
* Whether this disability involves pain, vomiting, material weight loss and hematemesis; melena with moderate anemia; or other symptom combinations productive of severe impairment of health.

* If the Veteran has had weight loss, in keeping with 38 C.F.R. § 4.112 (set forth above), his average weight for the past two years, whether he is unable to gain weight despite appropriate therapy; and the amount of weight loss sustained for three months or longer.  

A complete rationale for any opinion expressed and conclusion reached should be set forth in a legible report.  

3. Review the evidence and re-adjudicate the issues on appeal.  If the benefits sought on appeal are not granted, the Veteran and his representative should be provided with a SSOC and afforded the appropriate opportunity to respond to it.  Then the case should be returned to the Board for further appellate consideration.  

The appellant has the right to submit additional evidence and argument on the 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 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.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).  



______________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs