Citation Nr: 1336923 Decision Date: 11/13/13 Archive Date: 11/26/13 DOCKET NO. 07-17 286 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to an increased rating for Crohn's disease, currently rated 30 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran had active duty service from November 1989 to August 1993. This matter comes before the board of Veterans' Appeals (Board) from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, that denied an increased rating for service-connected Crohn's disease. Jurisdiction of the claim was returned to the Pittsburgh, Pennsylvania RO immediately after the January 2007 rating decision. In September 2011 and June 2013, this matter was remanded for additional development. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDINGS OF FACT Service-connected Crohn's disease has been manifested throughout the appeal period by abdominal pain, cramping, and diarrhea without malnutrition, frequent attacks, excessive weight loss, an overall decline in general health, or other serious symptomatology. CONCLUSION OF LAW The criteria for an evaluation in excess of 30 percent for the service-connected Crohn's disease have not been met. 38 U.S.C.A. § 1155, 5107, 7104 (West 2002); 38 C.F.R. § 4.7, 4.114 including Diagnostic Code 7323 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. 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 readjudication 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). In a claim for increase, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, No. 08-7150, 2009 WL 2835434 (Fed. Cir. Sept. 4, 2009). The Veteran was sent letters dated in June 2006 and June 2009 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further notice is required. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him 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. 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, his statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. 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 claim. Some of the Veteran's service treatment records were previously found to be missing. This matter was remanded on three occasions for additional development. In its April 2009 remand, the Board instructed the AOJ to attempt to obtain any available service treatment records. The Board noted a report that service treatment records had been sent to a state agency. Following the remand, the state agency reported that the Veteran was "no longer or is not" an active member of the state National Guard, and that the records had been transferred to the Record Archive Center. The AMC then contacted that facility and obtained service treatment records in August 2009. In its September 2011 remand, the Board instructed the AOJ to ask the Veteran to provide the names, addresses, and approximate dates of treatment of all health care providers, VA and private, who had treated him for Crohn's disease since 2009, and schedule him for a VA examination to determine the current level of impairment due to the service connected Crohn's disease. A letter was sent to the Veteran dated in September 2011 requesting the information regarding his health care providers, and the Veteran was scheduled for a VA examination in October 2011, for which he failed to report. In its June 2013 remand, the Board instructed the AOJ to updated VA treatment records, request that the Veteran identify any additional relevant treatment records, and again schedule the Veteran for a VA examination. Updated VA treatment records were obtained in July 2013; the Veteran failed to respond to a letter requesting additional information regarding treatment records; and the Veteran was examined by VA in August 2013. In addition, a review of the VA examination report indicates that the examination was adequate and complied with the June 2013 remand request. Based on the foregoing, the Board concludes that there has been substantial compliance with the terms of the Board's remands. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 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). II. Analysis. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a service-connected disability is at issue, however, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are also appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. See Hart v. Mansfield, 21Vet. App. 505 (2007). In cases in which a reasonable doubt arises as to the appropriate degree of disability to be assigned, such doubt shall be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Crohn's disease is evaluated under Diagnostic Code 7323, for ulcerative colitis. This Code provides a 30 percent rating for moderately severe symptoms, with frequent exacerbations. A 60 percent rating is warranted for severe symptoms, with numerous attacks per year and malnutrition, with only fair health during remissions. A 100 percent rating is warranted for pronounced symptoms, resulting in marked malnutrition, anemia, and general debility, or serious complications, such as liver abscesses. 38 C.F.R. § 4.114, Diagnostic Code 7323. Service treatment records show that on examination for entrance into service in October 1988, the Veteran was 70 3/4 inches tall and weighed 158 pounds. The Veteran was afforded a VA medical examination in October 2006. The examiner indicated that the Veteran's claims file had not been reviewed in connection with the examination and report. The Veteran reported symptoms of daily abdominal pain (worse at night and early morning), and an increase in diarrhea (8-10 bowel movements per day). He said that he was hospitalized twice a year for bowel obstruction. Upon examination, the Veteran weighed 199 pounds; there had reportedly been no weight change. His symptoms reportedly included daily nausea, diarrhea six or more times per day (watery, persistent, moderate), daily pain (episodic, moderate), bloating, fatigue, and abdominal tenderness. There were no symptoms of vomiting, constipation, fistula, sepsis, significant weight loss, malnutrition, anemia, or abdominal mass. The examiner indicated that there were episodes of abdominal colic, nausea/vomiting and abdominal distension consistent with bowel obstruction. This was indicated to be less often than monthly, three or more days in duration and severe. There examiner indicated that there was no trauma to the intestines and no history of neoplasms. The Veteran was diagnosed with Crohn's disease. The impact on occupational functioning was indicated to be increased absenteeism from weakness, fatigue and pain. The affect on daily activities was indicated to be none to mild, except for toileting, which was noted to be moderate. VA outpatient treatment records show the Veteran weighed 197.6 pounds in March 2008, and 210.4 pounds in December 2010. The Veteran was provided with an additional VA examination dated in August 2013. The examiner indicated that the Veteran's claims file had been reviewed. The Veteran was diagnosed as having Crohn's disease, but was on no medication. He was found to have flare-ups 3-4 times per year, with the most recent flare dating to fall 2012. During flare-ups, the Veteran experienced increased abdominal pain, increased bowel movements, nausea and vomiting. The Veteran otherwise had complaints of daily abdominal pain, and frequent bowel movements (approximately 10 per day, soft or watery, no constipation). The Veteran was noted to have lost 15-20 pounds recently, but the examiner indicated that this was due to an unrelated hospitalization from January to April 2013. The examiner noted that the Veteran's current weight was 183 pounds and had weighed 200 pounds in 2012, prior to his illness consisting of a lung abscess. The examiner indicated that there had been no weight loss due to intestinal conditions The examiner also indicated that the Veteran did not have malnutrition, serious complications or other general health effects attributable to his condition. The effect on occupational functioning was indicated to be frequent restroom breaks. In sum, the examiner stated that he "believes the Veteran's Crohn's disease is best categorized as moderately severe, with frequent exacerbations. He has 3-4 flares ups throughout the year; he has daily symptoms but eats well and had maintained a stable weight before his recent illnesses in Jan-April 2013; these illnesses caused weight loss but the weight loss would not be considered directly related to Crohn's. His recent blood work does NOT show anemia; it is normal. Overall, even without current maintenance medication, he is slowly regaining weight and doing well; he was in no distress during the exam and did not need to use restroom for the 2 hour period." The Veteran has received private and VA outpatient treatment during the pendency of this appeal. He has consistently reported symptoms similar to those detailed in the VA examination reports above. These records do not, however, indicate severe symptoms, with numerous attacks per year and malnutrition, with only fair health during remissions. The record shows no findings of malnutrition. Although he experienced a recent weight loss unrelated to Crohn's disease, he has at all times weighed significantly more than he did when he entered service and prior to the onset of Crohn's disease. He has consistently reported frequent exacerbations of his disease, but reported attacks have occurred at most a few times per year. Specifically, he has not exhibited severe symptoms, with numerous attacks per year and malnutrition, with only fair health during remissions, as would warrant a 60 percent evaluation. On each VA examination, he has been well-nourished, with no indications of malaise, or other decline of his overall health due to Crohn's disease. While his symptoms do result in pain and other discomfort, they do not prevent or impair his nutrition intake or other gastrointestinal functioning, as he has maintained a consistent weight. VA and private outpatient treatment records confirm the findings noted on VA examination. The Board concludes that a disability rating in excess of 30 percent is not warranted at any period during the pendency of this appeal. See Hart, 21 Vet. App. at 505. Additionally, the Veteran does not exhibit other gastrointestinal symptomatology which would support a higher evaluation under other pertinent diagnostic criteria for gastrointestinal disorders. See 38 C.F.R. § 4.114, Diagnostic Codes 7304-54. In addition, with respect to the Veteran's claim, the Board has considered the Veteran's statements with regard to the severity of his disability. He has not reported symptomatology that meets or approximates the criteria for a rating in excess of 30 percent. Extraschedular Rating Pursuant to § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if 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." 38 C.F.R. § 3.321(b)(1) (2008). The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, 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. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant'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." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). In this case, the record does not show manifestations of Crohn's disease that are beyond those contemplated by the rating schedule. Hence, referral for an extraschedular rating is not warranted. TDIU Finally, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a total rating for compensation based on individual unemployability (TDIU) is an element of an increased rating claim. TDIU is not raised unless there is evidence of unemployability. In this case the Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where the Veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b). In this case, the record shows that the Veteran has been employed during the pendency of his claim. The disability reportedly impacts his work in that he must take frequent restroom breaks, but there is no evidence of unemployability. ORDER An evaluation in excess of 30 percent for Crohn's disease is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs