Citation Nr: 1334866 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 11-15 543 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to an initial rating greater than 10 percent for irritable colon syndrome. REPRESENTATION Appellant represented by: Minnesota Department of Veterans Affairs ATTORNEY FOR THE BOARD J. L. Wolinsky Associate Counsel INTRODUCTION The Veteran had active military service from October 1964 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The rating decision was issued after a grant of service connection by the Board in February 2011. The Veteran seeks a higher initial rating for his service-connected irritable colon syndrome. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the electronic "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. For the period of April 2008 until December 2010, the Veteran's irritable colon syndrome was moderate with regard to episodes of bowel disturbance and abdominal distress. 2. For the period from December 2010, the Veteran's irritable colon syndrome was severe with regard to diarrhea, constipation and abdominal distress. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for service-connected irritable colon syndrome have not been met for the period from April 2008 to December 2010. 38 U.S.C.A. §§ 1155, 5013, 5103A, 5107, 7104 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.20, 4.130, Diagnostic Code 7319 (2013). 2. The criteria for a rating of 30 percent for service-connected irritable colon syndrome have been met from December 2010. 38 U.S.C.A. §§ 1155, 5013, 5103A, 5107, 7104; 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.20, 4.130, Diagnostic Code 7319. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a). The appeal arises from a disagreement with an initial rating decision in March 2011, issued after a grant of service-connection by the Board in February 2011. The courts have held that once service connection is granted the claim is substantiated, additional VCAA notice is not required; and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The duty to assist the Veteran has also been satisfied in this case. The RO has obtained the Veteran's available service treatment records, as well as his post service medical records, records from the Allina Medical Group, Minnesota Gastroenterology, P.A. and Coon Rapids Family Practice. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. A VA examination for irritable colon syndrome and related diseases was conducted in November 2011, and VA stomach exam was conducted in May 2010. 38 C.F.R. § 3.159(c)(4). At both exams the examiner reviewed the Veteran's complaints, medical history, conducted a physical examination and gave an opinion. Since the examinations included sufficient detail as to the current severity of the Veteran's irritable colon syndrome, the Board concludes that the examinations are adequate for evaluation purposes. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Legal Criteria The Veteran has been assigned a 10 percent disability rating for irritable colon syndrome effective April 2008. The Veteran seeks an initial rating of 30 percent. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where entitlement to compensation has already been established, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. In instances in which a veteran disagrees with the initial rating, the entire evidentiary record from the time of a veteran's claim for service connection to the present is of importance in determining the proper evaluation of disability, and staged ratings are to be considered in order to reflect the changing level of severity of a disability during this period. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Diagnostic Code 7319 provides ratings for irritable colon syndrome. Mild irritable colon syndrome, with disturbances of bowel function with occasional episodes of abdominal distress, is rated noncompensable (0 percent) disabling. Moderate irritable colon syndrome, with frequent episodes of bowel disturbance with abdominal distress, is rated 10 percent disabling. Severe irritable colon syndrome, with diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress, is rated 30 percent disabling. 38 C.F.R. § 4.114, Diagnostic Code 7319. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Background In several submissions to VA the Veteran has requested a 30 percent disability rating for his service-connected irritable colon syndrome. The evidence of record does not show that the Veteran had severe irritable colon syndrome for the entire for the period on appeal. Private medical records from Minnesota Gastroenterology, P.A. from April and May of 2009 shows that the "Veteran suffers from diarrhea, but multiple normal stools." The Veteran's chief complaint was altered bowel habits, with a 40 year history of approximately four stools per day, normal caliber to loose, and did not have significant abdominal pain. The Doctor stated that the Veteran's condition "represents a mild Irritable bowel syndrome." The Veteran submitted statements to VA in June 2009 which stated that the Veteran dreads trips because he is unsure where the next bathroom is. The Veteran does not eat when he travels either. Lay testimony from the Veteran's former supervisor received in June 2009 also stated that the Veteran needed many bathroom breaks. The Veteran's sister additionally submitted lay testimony received by VA in December 2009. The submission stated that the Veteran "would not participate in family functions because he was embarrassed to go too far from lavatory facilities. Since he had to go so frequently and with such little notice, he withdrew from attending gatherings where he was unfamiliar with the restroom availability and exact location." The Veteran's condition was erratic and frequently required bowel relief according to lay testimony. A VA stomach examination was administered to the Veteran in May 2010. At the exam the Veteran stated that at the present time he had bowel movements four to six times a day with some loose stool. He stated no pain or cramps and no blood. He did not take any medications for his digestive problems. The Veteran underwent another VA examination in December 2010. The Veteran stated that he has a bowel movement eight to times a day, and has urgency prior to his bowel movements. The Veteran denied abdominal discomfort and that his symptoms decreased with Immodium D. The Veteran denied periods of incapacitation due to stomach or duodenal disease, and no abdominal pain or cramps. The Veteran stated that he always needs to remain close to a bathroom, and gave up positions that require traveling, due to his need to be close to a rest room. In a statement received in the Veteran's Notice of Disagreement (NOD) in April 2011 the Veteran stated that he must go to the bathroom about ten times a day, and about half of them are diarrhea. In June 2011 the Veteran sent in a submission explaining the extent of his disability. He stated that he has severe diarrhea if he does not find a bathroom within a very short time span of having to go. If he can find a bathroom quickly it is a normal bowel movement. The Veteran also stated that if he does not go immediately then he has severe abdominal pain, his insides jingle and convulse, and the "diarrhea shoots out". The Veteran also stated that he has stomach pain and that if he drinks water the pain subsides. The Veteran also stated that he has bouts of constipation that last a few days to a week, and that it comes and goes. In November 2011 the Veteran underwent a VA examination for intestinal conditions. The examiner reported that the Veteran stated that after review of his 10 percent disability determination, he reported to the examiner that he had all the symptoms present for a 30% disability rating. He reported having about ten loose stools a day on the average. The Veteran reported taking Lomotil but only if he has to travel out of town, or if he has to travel to places where bathroom locations are unknown. The Veteran denied bloody or black stool, and reported constipation approximately twice a month lasting for three to five days. The Veteran also reported intermittent abdominal pain twice a week which awakens him at night. If the Veteran drinks water his abdominal pain goes away. The Veteran does not require continuous medication for his intestinal condition but does take Lomotil. The Veteran reported diarrhea and alternating diarrhea and constipation. The examiner found that the Veteran has episodes of bowel disturbance with abdominal distress which occurs frequently. The Veteran relayed to the examiner that he is unable to do any traveling for his job due to his bathroom needs. The Veteran again submitted statements in support of his claim in December 2011 stating that his symptoms warrant a 30 percent disability evaluation. The Veteran stated that he has constant diarrhea that alternates with constipation, he has black stool with more or less constant abdominal distress. Nausea sometimes accompanies the Veteran's abdominal distress. Analysis The Board has considered the aforementioned evidence and concludes that the 10 percent evaluation assigned for the Veteran is appropriate from April 2008 until December 2010. From April 2008 until December 2010 the Veteran exhibits moderate symptoms of irritable colon syndrome and not severe symptoms and therefore does not warrant a disability rating in excess of 10 percent prior to December 2010 under Diagnostic Code 7319. The earliest medical evidence of record for the appeal period from Minnesota Gastroenterology, P.A. from April and May of 2009 states that the Veteran had only four bowel movements a day. The Veteran stated that not all of his bowel movements were diarrhea and that he did not have stomach pain. This is not severe irritable colon syndrome as all bowel movements were not diarrhea, the Veteran did not report symptoms of constipation and no abdominal distress was noted. Furthermore the statements from the Veteran, his sister and former supervisor all note that the Veteran needed to frequently go to the bathroom and needed to be near a bathroom. The testimony basically classified the Veteran's irritable colon syndrome as an inconvenience for the Veteran but not a severe problem. The testimony only commented on the frequency of the Veteran's bowel movements and did not discuss whether the Veteran suffered from diarrhea, constipation or abdominal distress. The Board finds the testimony of the Veteran's sister and former supervisor competent and credible, however the testimony does not allege criteria needed for a rating in excess of 10 percent under Diagnostic Code 7319. The evidence from the Veteran's May 2010 VA examination additionally shows signs of moderate irritable colon syndrome. The Veteran reported an increased number in daily bowel movements of up to six a day, and stated that some are loose stools. The Veteran did not have pain, or blood in his stools and did not take medication for his condition. These symptoms described by the Veteran himself show that the Veteran was inconvenienced with bathroom trips though his irritable colon syndrome though it was not described as a constant problem for the Veteran. Thus, a rating of irritable colon syndrome for 30 percent disability is not warranted for the period because the symptoms were not severe under Diagnostic Code 7319. However, based on the evidence from December 2010 on, the Veteran does suffer from severe irritable colon syndrome which warrants a 30 percent disability rating under Diagnostic Code 7319. The evidence from that point onward shows the Veteran has eight to ten bowel movements a day with urgency. If the Veteran does not relieve himself in a speedy manner abdominal pressure builds and causes the Veteran to have diarrhea. The Veteran reported that he has prolonged constipation for a few days that sometimes lasts as much as five days, about twice a month. The Veteran also reported intermittent abdominal pain that awakens the Veteran about twice a week at night. The Veteran also reported black stool and nausea in December 2011. The Veteran was taking medication to reduce his symptoms, stated he had to remain close to a bathroom and that he did not apply for work positions which required travel. From December 2010, specifically, the evidence that the Veteran must go to the bathroom ten times a day, elevates a moderate inconvenience into a severe hindrance. The Veteran is competent to report observable symptoms such as pain and having episodes of diarrhea and constipation. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The Board also finds the Veteran's statements regarding his symptoms to be credible. The Veteran provided evidence in which it is clear that he is constantly worried about his next bowel movement, and that it impacts his social and occupational life. This symptom is thus severely affecting the Veteran. The Veteran further evidences near constant diarrhea, constipation, and abdominal distress in the form of pain, and pressure. The Veteran also exhibits general distress in worrying about his irritable colon syndrome while traveling, working, and at social functions. Thus, a rating of 30 percent disability for irritable colon syndrome is appropriate from December 2010 on. The Veteran stated he had about ten bowel movements a day, and along with his other symptoms this is severe irritable colon syndrome. The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which 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 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)(2011); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court set forth a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, as a threshold issue, the Board must determine whether the veteran's disability picture is contemplated by the rating schedule. If so, the rating schedule is adequate and an extraschedular referral is not necessary. If, however, the veteran's disability level and symptomatology are not contemplated by the rating schedule, the Board must turn to the second step of the inquiry, that is whether the veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." These include marked interference with employment and frequent periods of hospitalization. Third, if the first and second steps are met, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, a veteran's disability picture requires the assignment of an extraschedular rating. The evidence of record does not identify any factors which may be considered to be exceptional or unusual with respect to the Veteran's service-connected irritable colon syndrome. There is no unusual clinical picture presented, nor is there any other factor which takes the disability outside the usual rating criteria. The Veteran's frequency of bowel movements, diarrhea, constipation, medication, abdominal pain, and abdominal pressure are adequately contemplated by the rating criteria under Diagnostic Code 7319. As the Veteran's disability picture is contemplated by the rating schedule, the threshold issue under Thun is not met and any further consideration of governing norms or referral to the appropriate VA officials for extraschedular consideration is not necessary. In short, the evidence does not support the proposition that the Veteran's irritable colon syndrome presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards and to warrant the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1). Thus, referral of this issue to the appropriate VA officials for consideration of extraschedular evaluations is not warranted in this case. ORDER A rating in excess of 10 percent for service-connected irritable colon syndrome, prior to December 2010 is denied. A rating of 30 percent for service-connected irritable colon syndrome from December 2010 is granted, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs