Citation Nr: 1333161 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 10-12 665 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Evaluation of irritable bowel syndrome, initially rated as 10 percent disabling prior to April 3, 2008. 2. Evaluation of irritable bowel syndrome, rated as 30 percent disabling from April 3, 2008. 3. Evaluation of residuals of a traumatic brain injury (TBI), initially rated as 40 percent disabling. 4. Evaluation of posttraumatic stress disorder (PTSD), initially rated as 30 percent disabling. 5. Evaluation of right knee intrapatellar tendonitis, initially rated as noncompensable. 6. Evaluation of tinnitus, initially rated as 10 percent disabling. 7. Entitlement to a total rating for compensation on the basis of individual unemployability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran served on active duty from July 2002 to December 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. A January 2008 rating decision granted service connection for PTSD and assigned a 30 percent disability evaluation, effective December 25, 2006. This rating decision also granted service connection for irritable bowel syndrome, and assigned a 10 percent disability evaluation, effective December 25, 2006, as well as granted service connection for right knee intrapatellar tendonitis and tinnitus; noncompensable and 10 percent disability ratings, respectively, were assigned, also effective December 25, 2006. In a July 2008 rating decision, the Veteran was granted an increased, 30 percent evaluation for irritable bowel syndrome. An effective date of April 3, 2008 was assigned. And, in a September 2012 rating decision, service connection for residuals of a TBI was granted; a 40 percent disability evaluation was assigned, also effective April 3, 2008. The Virtual VA claims file has been reviewed. The claims for increased disability ratings for residuals of a TBI, PTSD, right knee intrapatellar tendonitis, and tinnitus, as well as the claim of entitlement to TDIU are addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Prior to April 3, 2008, irritable bowel syndrome was manifested by moderate symptoms with frequent episodes of bowel disturbance with abdominal distress. 2. Since April 3, 2008, irritable bowel syndrome is manifested by severe symptoms, with alternating diarrhea and constipation, with nearly constant abdominal distress. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating higher than 10 percent for irritable bowel syndrome prior to April 3, 2008 have not been met for the rating period prior to April 3, 2008. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.114, Diagnostic Code 7319 (2013). 2. The criteria for a disability rating higher than 30 percent for irritable bowel syndrome for the rating period from April 3, 2008 are not met. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.114, Diagnostic Code 7319 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In this case, the agency of original jurisdiction (AOJ) issued notice letters, dated in October 2007 and April 2007, to the Veteran. This letter explained the evidence necessary to substantiate the Veteran's initial claim for service connection and the downstream issue of an increased rating, as well as the legal criteria for entitlement to such benefits. The letters also informed him of his and VA's respective duties for obtaining evidence. The AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist a veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The claims file contains the Veteran's available service treatment records, reports of VA post-service treatment, and the Veteran's own statements in support of his claims. The Veteran was afforded VA examinations responsive to the initial claim for service connection and the subsequent claim for an increased rating. The Board has reviewed the examination reports, and finds that they are adequate for the purpose of deciding the issue on appeal. The examination reports contain all the findings needed to rate the Veteran's service-connected irritable bowel syndrome, including history and clinical evaluation. The Veteran's appeal for higher evaluations, is distinguished from the facts in Proscelle v. Derwinski, 2 Vet. App. 629, 633 (1992), where no VA examination was provided during the rating claim, and a veteran specifically stated that his disability "has increased in severity [such] that I rate a higher disability," constituting at least both some assertion by the veteran and some evidence of worsening of disability since the last VA examination. Proscelle, 2 Vet. App. at 632. In the Veteran's case currently on appeal to the Board, there is no evidence of worsening of the Veteran's disability since the 2008 VA examination, including no assertion by the Veteran of worsening since the last VA examination. The Veteran here does not assert that his irritable bowel syndrome has worsened since the July 2008 VA examination; he merely asserts entitlement to higher disability evaluations. The Veteran has not submitted evidence of worsening, and the evidence of record, including the medical evidence reflecting on the severity of the disability on appeal, does not suggest that these disabilities worsened since the most recent VA examinations, or since the most recent VA treatment records. As there is no evidence of worsening since the last VA examination, a remand for a new VA examination is not warranted, and is not required by the VCAA. See Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007) (mere passage of time does not require VA to provide a new medical examination); VAOPGCPREC 11-95 (interpreting that a new examination is appropriate when there is an assertion of an increase in severity since the last examination). The Veteran has been afforded adequate examinations on the issue decided herein. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Additionally, the Veteran has not alleged that any examination is inadequate to decide the claim being adjudicated herein, so the examinations are presumed to have been adequate. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of the opinion). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claim. For these reasons, the Board finds that the VCAA duties to notify and assist have been met. Legal Criteria for Disability Evaluation Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the disability has significantly changed and a staged evaluation is warranted. Analysis for Increased Disability Evaluation The Veteran currently has a 10 percent rating for his irritable bowel syndrome prior to April 3, 2008 and a 30 percent rating since that date, pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7319. According to Code 7319, a 10 percent disability rating is for assignment where there is moderate irritable bowel syndrome, with frequent episodes of bowel disturbance with abdominal distress. A 30 percent rating requires severe irritable bowel syndrome with diarrhea or alternating diarrhea and constipation, with more or less constant abdominal distress. See 38 C.F.R. § 4.114, Code 7319 (2013). There is no higher evaluation available under this rating code. In reaching this decision, the Board also considered other applicable rating criteria. Nonetheless, the Board points out that the Veteran does not have severe ulcerative colitis with malnutrition, resection or fistula of the intestines, impaired sphincter control, stricture of the rectum and anus, or prolapsed of the rectum as a result of his irritable bowel syndrome. As such, he is not entitled to increased disability evaluations under any other potentially applicable Diagnostic Codes. See 38 C.F.R. § 4.114, Diagnostic Codes 7323, 7328-7334 (2013). Prior to April 3, 2008 The Veteran was afforded a VA examination in November 2007. According to the report, the Veteran complained of diarrhea, but denied experiencing nausea, vomiting, and constipation. He reported that the diarrhea occurs for about 6 hours every other day, with loose stools during this time. He denied treatment for his IBS, but complained of abdominal pain and cramping during these episodes. He reported that he needed to be close to a bathroom in the morning. Physical examination did not show malnutrition, abdominal pain or tenderness, fistula, ostomy, abdominal mass, or signs of anemia. He had normal bowel sounds, without hyperactive bowel tones or tenderness. Rectal examination was deferred at the Veteran's request. The Veteran reported a recent weight gain, but denied surgery or hospitalization. After a review of the evidence, the Board finds that the Veteran's current 10 percent disability rating is most appropriate for the Veteran's irritable bowel syndrome for the rating period prior to April 3, 2008, and that a higher rating is not warranted. 38 C.F.R. § 4.7. The evidence of record indicates that the Veteran's irritable bowel syndrome was productive of intermittent diarrhea and abdominal distress. At the most contemporaneous, November 2007 VA examination, the Veteran's bowel sounds were normal, there was no abdominal tenderness, and the Veteran reported that he was did not need treatment for his irritable bowel syndrome. The VA examiner noted that there was no indication of malnutrition or anemia; the Veteran had recently experienced a weight gain. More specifically, the competent and credible lay evidence regarding frequency established that prior to April 3, 2008, he had frequent episodes rather than more or less constant abdominal distress. As such, the Veteran is not entitled to a rating in excess of 10 percent for his irritable bowel syndrome for the period prior to April 3, 2008. Since April 3, 2008 On April 3, 2008, the VA received a statement from the appellant. In pertinent part he reported that the IBS was an everyday event with a variation of pain and other symptoms. The Veteran was afforded another VA examination in June 2008. That report states that the Veteran complained of abdominal cramping every morning, with 6 bowel movements per day. The Veteran reported that his bowel movements are watery in the morning and firmer later in the day. He also complained of occasional brief constipation and some mucous in the stools. He denied hematochezia or melena. He denied using medication; he reported that he drinks water and has plenty of fiber, and stays close to the bathroom. Upon examination, he was adequately nourished. His abdomen was not tender or distended. Bowel sounds were normal. There were no palpable organomegaly or masses. The diagnosis is irritable bowel syndrome. He underwent a colonoscopy in August 2013. The diagnosis was colitis, non-infectious and colon polyp. After a review of the evidence for the period since April 3, 2008, the Board finds that the Veteran's current 30 percent disability rating is most appropriate for the Veteran's irritable bowel syndrome, and that a higher rating is not warranted. 38 C.F.R. § 4.7. The evidence of record indicates that the Veteran's irritable bowel syndrome was productive of alternating diarrhea and constipation, with more or less constant abdominal distress. At the most recent June 2008 VA examination, the Veteran's bowel sounds were normal and there was no abdominal distention or abdominal tenderness. The Veteran reported that he did not utilize medication to treat his irritable bowel syndrome symptoms. The VA examiner noted that there was no indication of malnutrition; the Veteran was well nourished and denied melena. As such, the Veteran is not entitled to a rating in excess of 30 percent for irritable bowel syndrome for the period since April 3, 2008. Lay Pleadings One function of the Board is to consider the lay evidence and pleadings. However, other than that recorded during medical evaluations, the record is lacking in substantive pleadings from the Veteran or the representative. The AOJ did accept the Veteran's report that he experienced an everyday event and served as the basis for the staged rating. Under the circumstances, the medical evidence is more probative than any implied pleadings or lay evidence. The Board has considered the statements by the Veteran. We accept as credible that frequent diarrhea creates difficulties and that he requires proximity to a bathroom due to his irritable bowel syndrome. However, neither the lay nor medical evidence suggests that his irritable bowel syndrome should be rated under a different diagnostic code. Extraschedular Considerations As to consideration of referral for an extraschedular rating, such consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. The discussion above reflects that the symptoms of the Veteran's irritable bowel syndrome are fully contemplated by the applicable rating criteria. As shown above, the criteria include symptoms, each of which were addressed in the VA examination reports and treatment records and which provided the basis for the disability ratings that were assigned. The Veteran has no complaints other than the frequency of diarrhea, which was considered as part of determining his evaluation; however, the Veteran refuses treatment with medication. With regard to his irritable bowel syndrome, he complains of abdominal distress as a result of his disability, which was clearly considered in the evaluation carried out by each examiner and which serves as the basis for his assigned disability rating for his irritable bowel syndrome. In any event, the evidence does not reflect that there has been marked interference with employment, frequent hospitalization, or that the Veteran's symptoms have otherwise rendered impractical the application of the regular schedular standards. The Veteran alleged that irritable bowel syndrome interferes with his ability to work, but he did not indicate that he had to miss any time from work due to his irritable bowel syndrome, and denied needing hospitalization or surgery. According to the Veteran, his irritable bowel syndrome requires close proximity to a bathroom, but have no other impact on his employment. Therefore, referral for consideration of an extraschedular rating for the Veteran's irritable bowel syndrome is not warranted. 38 C.F.R. § 3.321(b)(1). In the absence of exceptional factors associated with irritable bowel syndrome, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Entitlement to an initial disability evaluation in excess of 10 percent prior to April 3, 2008, for irritable bowel syndrome is denied. Entitlement to a disability evaluation in excess of 30 percent for irritable bowel syndrome for the period since April 3, 2008 is denied. REMAND A claim for increased evaluation includes a claim for a TDIU where there are allegations of worsening disability and related unemployability. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Board notes that the Veteran has not formally filed a claim of entitlement to a TDIU; however, during the increased rating claims (for PTSD, tinnitus, intrapatellar tendonitis of the right knee, residuals of a TBI, and irritable bowel syndrome), the Veteran has alleged that his service-connected disabilities preclude him from obtaining or maintaining gainful employment. The TDIU claim is part and parcel of the increased rating claim on appeal, but this claim has not yet been adjudicated by the RO. VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement pertinent records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In an August 2008 statement, the Veteran indicated that his current disability evaluations for his service-connected PTSD, right knee intrapatellar tendonitis, and tinnitus did not account for his symptoms. Likewise, in October 2012, the Veteran's representative indicated that the Veteran desired his residuals of a TBI to be appealed. The Board construes these statements as notice of disagreements. Because the Veteran filed a notice of disagreement (NOD) as to the issues of entitlement to increased ratings for PTSD, tinnitus, residuals of a TBI, intrapatellar tendonitis of the right knee, the Veteran is entitled to a statement of the case (SOC) addressing those issues. When a claimant has filed a NOD and there is no SOC on file for that issue, the Board must remand, not refer, the issue to the RO for issuance of a SOC. Manlincon v. West, 12 Vet. App. 238 (1999). As such, these claims must be remanded to the RO for issuance of a statement of the case (SOC). The Veteran also must be given an opportunity to perfect an appeal to the Board concerning these issues by submitting a timely substantive appeal (e.g., a VA Form 9 or equivalent statement). See 38 C.F.R. §§ 20.200, 20.202, 20.300, 20.301, 20.302, 20.303, 20.304, 20.305. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a VCAA notice letter pertaining to a claim for entitlement to TDIU, and allow for a reasonable period to respond. The RO/AMC should request that the Veteran provide sufficient information and authorization, to enable it to obtain any additional evidence pertinent to the claim for TDIU. 2. The AOJ should issue a statement of the case regarding the issues of entitlement to increased disability ratings for PTSD, tinnitus, intrapatellar tendonitis of the right knee, and residuals of a TBI. 3. If, upon completion of the above action, the benefits sought remain denied, the case should be returned to the Board after compliance with requisite appellate procedures. The appellant has the right to submit additional evidence and argument on the matter 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 of Veterans' Appeals 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. 2012). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs