Citation Nr: 1418059	
Decision Date: 04/22/14    Archive Date: 05/02/14

DOCKET NO.  07-37 809	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to a rating in excess of 30 percent for irritable bowel syndrome/colitis.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

A. Adamson, Counsel


INTRODUCTION

The Veteran had active duty service from September 1966 to October 1969.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a 
December 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas which denied the Veteran's claim for a compensable rating for irritable bowel syndrome (IBS)/colitis.

The Veteran testified before an Acting Veterans Law Judge (AVLJ) at a June 2010 Travel Board hearing.  The hearing transcript has been associated with the claims file.  Following the hearing, the Board remanded this matter in September 2010 for additional development.  

A February 2012 rating decision issued by the Appeals Management Center (AMC) partially granted the Veteran's claim by assigning a 30 percent rating for IBS/colitis, effective July 10, 2006.  A veteran is presumed to seek the maximum available benefit for a disability; thus, the claim for a higher rating remains on appeal.  AB v. Brown, 6 Vet. App. 35, 38 (1993).

In March 2012, the Board issued a decision denying the Veteran's claim.  

Pursuant to a settlement agreement in the case of National Org. of Veterans' Advocates, Inc. v. Secretary of Veterans Affairs, 725 F.3d 1312 (Fed. Cir. 2013), the Board's March 2012 decision was identified as having been potentially affected by an invalidated rule relating to the duties of the Acting Veterans Law Judge that conducted the June 2010 hearing.  In order to remedy any such potential error, the Board sent the Veteran a letter notifying him of an opportunity to receive a new hearing and/or a new decision from the Board.  Subsequently, the Veteran requested only to have the prior decision vacated and a new decision issued in its place.  This decision satisfies the Veteran's request.

Furthermore, since the March 2012 Board decision, the Acting Veterans Law Judge that conducted the June 2010 hearing has retired from the Board.  Generally, the law requires that the Veterans Law Judge who conducts a hearing on an appeal must participate in any decision made on that appeal.  38 U.S.C.A. § 7107(c) (West 2002); 38 C.F.R. § 20.707 (2013).  Because the Acting Veterans Law Judge who conducted the June 2010 hearing is no longer employed by the Board, he cannot participate in the adjudication of the Veteran's claim.  The Board recognizes, however, that the Veteran was recently provided an opportunity for a new hearing and, in September 2013, he indicated that he does not desire a new hearing.  As such, the Board shall proceed in the readjudication of his claim.  

The record before the Board consists of the Veteran's paper claims files and electronic files known as Virtual VA and Veterans Benefits Management System (VBMS).  The entire record was reviewed by the Board.  A review of the Virtual VA file indeed reflects that VA/CAPRI records have been added to the file since the Board's prior decision in this matter.  The Board's review of the records, however, reveals that they relate to ongoing treatment of current disabilities, but contain no statements or reports showing increased severity of the Veteran's IBS/colitis since the Board's prior decision.  These records are cumulative of facts previously of record and already considered by the RO, and contain no information that is in any way dispositive in this case.  Thus, while a formal waiver was not presented for the file addressing this evidence, the Board finds that referral to the RO of this evidence is not required and that a remand for consideration of this evidence is unnecessary.  38 C.F.R. §§ 19.37, 20.1304 (2013).

The issue of whether there was clear and unmistakable error (CUE) in an October 1971 rating decision that, in pertinent part, reduced the Veteran's IBS/colitis rating to noncompensable effective January 1, 1972, was raised by the Veteran in a March 2012 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2013).


FINDING OF FACT

The Veteran's IBS/colitis is manifested by constipation, alternating diarrhea, fluctuating weight loss and abdominal cramping; the record is negative for ulcerative colitis and malnutrition.


CONCLUSION OF LAW

The criteria for a rating in excess of 30 percent for IBS/colitis are not met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321, 4.1-4.10, 4.114, 7319, 7323 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claim submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence.  See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(b) (2013).  The notice requirements regarding entitlement to a higher rating were accomplished in a letter sent to the Veteran in November 2006 prior to the initial rating decision.  This letter included notice of the type of evidence necessary to establish a disability rating and effective date for the disability under consideration, pursuant to the holding in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Under these circumstances, the Board finds that VA's duty to notify the Veteran has been satisfied. 

VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records, pertinent treatment records, and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  VA has met the duty to assist the Veteran in the development of his claim.  The Veteran's service treatment records, various private treatment records and VA treatment records have been obtained.  The Veteran has been afforded several VA examinations and sufficient medical opinions have been obtained.  The November 2006, December 2007, and October 2010 examination reports are adequate for evaluation purposes because the examiners conducted a clinical evaluation and described the Veteran's disability in sufficient detail so that the Board's evaluation is an informed determination.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  The Veteran has not asserted that his disability has worsened in severity since the last VA examination and the Board notes that a remand is not required solely due to the passage of time since the last examination.  See Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007).  These examinations, along with the Veteran's testimony and statements and treatment records, are sufficient for rating purposes.  The Veteran has not indicated there are any additional records that VA should seek to obtain on his behalf. 

In June 2010, the Veteran presented testimony before an Acting Veterans Law Judge (AVLJ).  The provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on the Veterans Law Judge conducting hearings:  the duty to fully explain the issues and the duty to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010).  During the June 2010 hearing, the AVLJ clarified the issue on appeal and inquired as to the nature and severity of the Veteran's symptoms.  While the AVLJ did not specifically seek to identify pertinent evidence not currently associated with the record; this was not necessary.  The Veteran volunteered his treatment history from the time of his active service to the present, as well as possible sources of additional evidence.  The Board remanded the matter following the hearing in order to pursue these additional avenues of evidentiary development and also to provide the Veteran with a new VA examination in order to develop the current record.  Moreover, neither the Veteran, nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), or identified any prejudice in the conduct of the Board hearing.  The Board, therefore, concludes that it has fulfilled its duty under Bryant.

As neither the Veteran nor his representative have indicated that there is any outstanding pertinent evidence to be obtained, the Board may proceed with the consideration of the Veteran's claim.

Increased Rating Criteria

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 and an increase in the disability rating is at issue, the present level of disability is of primary concern.  Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings.  Francisco v. Brown, 7 Vet. App. 55 (1994).

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).

Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by a veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

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.

In view of the number of atypical instances, it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified.  Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances.  38 C.F.R. § 4.21.

Irritable colon syndrome (spastic colitis, mucous colitis, etc.) that is severe with diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress, warrants a 30 percent rating.  38 C.F.R. § 4.114, Diagnostic Code 7319.  This is the present rating assigned for the Veteran's IBS/colitis, and is the highest schedular rating available under Diagnostic Code 7319.

Ulcerative colitis that is moderately severe with frequent exacerbations also warrants a 30 percent rating.  Severe ulcerative colitis with numerous attacks per year and malnutrition and health that was only fair during remissions warrants a 60 percent rating.  Pronounced ulcerative colitis that resulted in marked malnutrition, anemia and general debility or with serious complications such as a liver abscess warrants a 100 percent rating.  38 C.F.R. § 4.114, Diagnostic Code 7323.

Ratings under Diagnostic Codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348, inclusive, will not be combined with each other.  A single evaluation will be assigned under the diagnostic code that reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation.  38 C.F.R. § 4.114. 

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.

Analysis

A June 2006 private treatment shows the Veteran underwent a sigmoid colostomy due to acute and chronic diverticulitis with a pelvic abscess from a perforated diverticulitis.  A November 2006 VA gastrointestinal examination reflected the Veteran's reports of undergoing a sigmoid colostomy in June 2006 due to lower abdominal pain and frequent bowel movements.  He denied having diarrhea during these episodes and did not believe he had fevers.  Physical examination was negative for organomegaly and revealed an Ostomy bag on the left quadrant.  The VA examiner diagnosed status-post hemicolectomy with a Hartmann pouch for diverticulitis and abscess.  The examiner opined that the Veteran's diverticulitis was not caused by or the result of his service connected colitis as it was mostly related to a low fiber diet and a lack of vigorous exercise.

In December 2006, the Veteran wrote that his abdominal pain had increased in severity and frequency.  He reported that often the pain was so bad that he had to call in sick to work. He reported relief of pain with bowel movements, but that he could no longer know when such a bowel movement would occur.  "It may be once a day or four times a day."

A July 2007 treatment summary from Dr. D. H. indicated that he had seen the Veteran in June 2007 with complaints of right sided and right lower quadrant abdominal pain.  The Veteran subsequently underwent a colon resection with a temporary colostomy and recovered.  His complaints of right sided abdominal pain persisted, although the provider was unable to observe any findings on physical examination.

During the June 2010 hearing, the Veteran testified that his gastrointestinal disability had been rated as amoebic cysts immediately after service and the rating was eventually reduced to a noncompensable rating.  He later developed a severe case of diverticulitis and had his colon resected.  Current symptoms included constipation, alternating diarrhea, fluctuating weight loss and abdominal cramping. He did not believe diet played a part in his symptoms and he reported daily symptoms with episodes occurring on a weekly basis.  The abdominal cramping occurred two to three times per week and was reported to be severe enough to bring him to his knees.

An October 2010 VA gastroenterology examination reflected the Veteran's symptoms as including intermittent problems with weekly diarrhea, weekly constipation and daily abdominal cramps.  Nausea, vomiting, ulcerative colitis or the use of medication was denied.  Physical examination found vague mild diffuse abdominal tenderness on deep palpation without peritoneal signs, guarding or rebound.  His overall general health was good and there were no signs of significant weight loss, malnutrition or anemia.  No blood tests were indicated.  Following this examination and a review of the Veteran's claims file, diagnoses of colitis and status-post sigmoid colostomy for diverticulitis were made.  The examiner opined that his current symptoms of diarrhea, constipation and cramps were less likely than not associated with or related to his diverticulitis in 2006 as diverticulitis typically presented with more chronic or subacute symptoms.  The varying severity and occurrence in conjunction with the location of his existing symptoms were less likely than not associated with diverticulitis.  An April 2011 VA addendum to the October 2010 VA examination report, however, indicated that the Veteran's current diarrhea, constipation and cramps were at least as likely as not associated with his IBS/colitis.  The examiner noted that the signs and symptoms of IBS can vary widely from person to person and often resemble other diseases.  The most common symptoms were abdominal pain, cramping, a bloated feeling, gas (flatulence), diarrhea, constipation and mucus in the stool and, sometimes, alternating bouts of constipation and diarrhea.  This opinion was based upon a review of the Veteran's claims file and medical literature.

The Veteran's IBS/colitis is currently rated as 30 percent disabling, which is the highest schedular rating available for IBS.  A higher rating would require severe ulcerative colitis with numerous attacks a year and malnutrition.  Ulcerative colitis was repeatedly denied by the Veteran and not shown in the clinical evidence of record.  In addition, malnutrition was not found on repeated VA examination or within any of the clinical records.  Moreover, the various statements from the Veteran's private physicians do not support any such findings at any time during the course of this Veteran's claim and appeal.  Accordingly, a rating in excess of 30 percent is not warranted under any applicable diagnostic code.  38 C.F.R. § 4.114, Diagnostic Codes 7319, 7323.

As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. at 55-57 (1990).

The Board has considered whether the case should be referred to the Director of Compensation Service for extra-schedular consideration.  In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disabilities with the established criteria provided in the rating schedule for each disability.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  In this case, the manifestations of the service-connected IBS/colitis, as discussed above, are contemplated by the schedular criteria.  The Board has therefore determined that referral of this case for extra-schedular consideration under 38 C.F.R. § 3.321(b) is not in order. 

Finally, a total disability rating based upon individual unemployability (TDIU) is an element of all appeals of an initial rating.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  TDIU is granted where a veteran's service connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him.  38 C.F.R. § 4.16.  

In this case, prior to April 29, 2009, the Veteran was employed full time.  Consideration of a TDIU is for this period is therefore not warranted.  See Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009) (TDIU is a part of an increased rating or initial rating only when there is evidence of unemployability).  A June 2009 rating decision granted entitlement to TDIU benefits as of April 29, 2009, the date the Veteran was no longer employed full time.  Further consideration of entitlement to TDIU is therefore not required.



ORDER

Entitlement to a rating in excess of 30 percent for IBS/colitis is denied.



____________________________________________
JOAQUIN AGUAYO-PERELES
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs