Citation Nr: 1342646	
Decision Date: 12/24/13    Archive Date: 12/31/13

DOCKET NO.  11-28 628	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boise, Idaho


THE ISSUE

Entitlement to an initial disability evaluation higher than 10 percent for irritable bowel syndrome.  


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Veteran and spouse


ATTORNEY FOR THE BOARD

M. Taylor, Counsel


INTRODUCTION

The Veteran served on active duty from November 1987 to December 1993.  

This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. 

A videoconference Board hearing was held in January 2013 before the undersigned Veterans Law Judge.  A copy of the transcript of that hearing is of record.  


FINDING OF FACT

The Veteran's irritable bowel syndrome more closely approximates a severe nature, characterized by more or less constant abdominal distress along with alternating diarrhea and constipation. 


CONCLUSION OF LAW

The criteria for an initial 30 percent disability evaluation for irritable bowel syndrome have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.114, Diagnostic Code 7319 (2012).  


REASONS AND BASES FOR FINDING AND CONCLUSION

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  In the November 2011 VA Form 9, the Veteran explicitly stated that a 30 percent disability evaluation for irritable bowel syndrome would satisfy his appeal.  
The Board is granting in full the benefit sought on appeal.  Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed.  

Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities.  38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. Part 4 (2012).  Separate rating codes identify the various disabilities.  38 C.F.R. Part 4 (2012). 

In determining the current level of impairment, the disability must be considered in the context of the whole-recorded history, including service treatment records.  38 C.F.R. §§ 4.2, 4.41 (2012).  The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  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 for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2012). 

An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment, and the effect of pain on the functional abilities.  38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 (2012); DeLuca v. Brown, 8 Vet. App. 202, 204-06 (1995).  

Under the laws administered by VA, the Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.3 (2012).  

The appeal stems from the initial 10 percent disability evaluation assigned following the grant of service connection for irritable bowel syndrome in an October 2009 rating decision.  The Veteran asserts that the 10 percent rating does not reflect the severity of his symptoms.  

The Veteran's irritable bowel syndrome is rated pursuant to Diagnostic Code 7319.  Under that code, a 10 percent rating is assigned for moderate irritable colon syndrome (spastic colitis, mucous colitis, etc.) for frequent episodes of bowel disturbance with abdominal distress.  A 30 percent rating is warranted when severe, with diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress.  38 C.F.R. § 4.114, Diagnostic Code 7319 (2012).  

Private treatment records in August 2009 reflect severe irritable bowel syndrome with diarrhea and constipation.  It was noted that despite changing his diet to avoid carbohydrates, the Veteran continued to have significant symptoms.  Although quality of life was reported to have improved on a new medication regimen, it was noted to still be far from normal.  Regardless, the effects of medication are not specifically contemplated by the rating criteria.  See Jones v. Shinseki, 26 Vet. App. 56 (2012) (holding that the Board, in assigning a disability rating, may not consider the ameliorative effects of medication where such effects are not explicitly contemplated by the rating criteria).  

VA treatment records reflect the Veteran's complaints of problematic irritable bowel syndrome symptoms in March 2009 and April 2009.  It was noted that he had been enrolled in an outside clinical trial.  

The October 2009 VA examination report notes diarrhea four to six times daily, intestinal pain several times daily for one to two hours at a time, and diffuse abdominal tenderness.  A moderate impact on activities of daily living along with a need for urgent and frequent bowel movements was reported.  

A February 2011 VA treatment record reflects the Veteran's complaints of 'endless' diarrhea.  In July 2011, diarrhea, cramping, and abdominal pain were reported. 

Under these circumstances, with his history of more or less constant abdominal distress along with alternating diarrhea and constipation, the Board finds the symptoms more closely approximate to the criteria for an evaluation of 30 percent.  See 38 C.F.R. § 4.7.  The 30 percent evaluation is the maximum assignable under Diagnostic Code 7319.  38 C.F.R. § 4.114, Diagnostic Code 7319 (2012).  The Veteran explicitly stated that a 30 percent disability evaluation for irritable bowel syndrome would satisfy his appeal.  

The evidence is in favor of the claim.  An initial 30 percent evaluation is warranted for irritable bowel syndrome.  


ORDER

An initial 30 percent disability evaluation for irritable bowel syndrome is granted.  



____________________________________________
RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs