Citation Nr: 1510449	
Decision Date: 03/12/15    Archive Date: 03/24/15

DOCKET NO.  07-09 921	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Hartford, Connecticut


THE ISSUES

1.  Entitlement to a rating in excess of 10 percent for irritable bowel syndrome (IBS), on extra-schedular basis pursuant to 38 C.F.R. § 3.321(b).  

2.  Entitlement to ratings in excess of 10 percent (February 1, 2005 to April 12, 2010) and 20 percent (from April 12, 2010) for cervical spine degenerative joint disease (DJD), on extra-schedular basis pursuant to 38 C.F.R. § 3.321(b).  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

G. Jackson, Counsel


INTRODUCTION

The Veteran served on active duty from April 1995 to January 2005.  His DD Form 214 reflects that he had 3 months and 15 days of prior active service.  

This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision issued by RO. The Board remanded the claims in June 2010 and December 2011 for additional development.  

In September 2013, the Board, in pertinent part, granted a 10 percent schedular evaluation for IBS for the period from February 1, 2005 to April 12, 2010 but denied the Veteran's claim of entitlement to a schedular evaluation in excess of 10 percent for the IBS, denied the Veteran's claim of entitlement to a schedular rating in excess of 10 percent for cervical spine DJD for the period from February 1, 2005 to April 12, 2010 and denied the Veteran's claim of entitlement to a schedular rating in excess of 20 percent for cervical spine DJD from April 12, 2010. The Board remanded the claims of entitlement to an extraschedular rating for IBS and entitlement to an extraschedular rating for cervical spine DJD for further development. That development has been completed and the case has been returned to the Board for appellate review.

Finally, the Board notes that, in addition to the paper claims file, there is an electronic claims file associated with the Veteran's claims. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal herein decided.


FINDINGS OF FACT

1. At no point has the Veteran's IBS disability been shown to be so exceptional or unusual as to render inadequate the regular schedular standards for rating the disability.

2. At no point has the Veteran's cervical spine DJD disability been shown to be so exceptional or unusual as to render inadequate the regular schedular standards for rating the disability.


CONCLUSIONS OF LAW

1. The criteria for a disability rating in excess of 10 percent for IBS, on an extra-schedular basis pursuant to 38 C.F.R. § 3.321(b)(1), are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1) (2014).

2. The criteria for disability ratings in excess of 10 percent from February 1, 2005 to April 12, 2010 and 20 percent from April 12, 2010 for cervical spine DJD, on an extra-schedular basis pursuant to 38 C.F.R. § 3.321(b)(1), are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1) (2014).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014).  The VCAA applies to the instant claims. 

VA is required to notify the claimant and his or her representative of any information, and any 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

The duty to notify in this case was satisfied by letters sent to the Veteran in September and October 2013. The claim was last adjudicated in January 2014.

In addition, the duty to assist the Veteran has also been satisfied in this case.  The Veteran's service treatment records as well as all identified and available VA and private medical records are in the claims file and were reviewed by both the RO and the Board in connection with his claims. The Veteran has not identified any other outstanding records that are pertinent to the issue currently on appeal.  

In addition, the Veteran was afforded VA examinations in connection with his claims for increased ratings. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the examinations are adequate with regard to the issues on appeal. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). 

Further, the Board is aware that this appeal was, most recently, remanded by the Board in September 2013. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a Court or Board remand confers upon the appellant the right to compliance with that order). That remand requested that the Agency of Original Jurisdiction obtain recent VA treatment records and refer the claims of entitlement to extraschedular ratings to the Under Secretary or the Director of Compensation for determination as to whether extraschedular ratings are warranted. Here, the Director of Compensation offered an opinion in January 2014 that addresses whether extraschedular ratings are warranted. Accordingly, the Board finds that there has been substantial compliance with its previous remand and it may proceed to adjudication of this appeal. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).

In summary, the Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. He was an active participant in the claims process submitting evidence and argument and presenting for a VA examination. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of these matters on the merits. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

Analysis

As noted above, in the September 2013 decision, the Board granted a 10 percent schedular evaluation for IBS for the period from February 1, 2005 to April 12, 2010 but denied the Veteran's claim of entitlement to a schedular evaluation in excess of 10 percent for the IBS, denied the Veteran's claim of entitlement to a schedular rating in excess of 10 percent for cervical spine DJD for the period from February 1, 2005 to April 12, 2010 and denied the Veteran's claim of entitlement to a schedular rating in excess of 20 percent for cervical spine DJD from April 12, 2010. Hence, the matters remaining on appeal are limited to consideration of whether any higher ratings, on an extra-schedular basis, are warranted.  As discussed in detail in that decision, the Board determined, with respect to the IBS disability, that a rating in excess of 10 was not warranted because the Veteran's IBS had been manifested by not more than moderate symptomatology (i.e., frequent episodes of bowel disturbance with abdominal distress). With respect to the cervical spine DJD, the Board determined that the Veteran's cervical spine DJD was manifested by painful motion. However, forward flexion was not limited to 30 degrees or less, combined range of motion was not limited to 170 degrees or less, and there was no muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour (February 1, 2005 to April 12, 2010) and forward flexion has not been limited to 15 degrees or less, and there has been no ankylosis of the cervical spine (from April 13, 2010). Additionally, separate rating for neurologic manifestations was not warranted.

Consideration of referral for an extraschedular rating 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. 

A schedular rating itself is recognition that claimant's industrial capacity is impaired to some degree.  Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).  Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the injury.  Van Hoose, 4 Vet. App. at 363; 38 C.F.R. § 4.1 (2011). In exceptional cases, where the ratings provided by the rating schedule are found to be inadequate, an extra-schedular evaluation may be assigned commensurate with the veteran's average earning impairment due to service-connected disability.  Fisher v. Principi, 4 Vet. App. 57, 60 (1993).  An extra-schedular rating requires 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 as to render impractical the application of the regular schedular standards.  Fanning v. Brown, 4 Vet. App. 225, 229 (1993); 38 C.F.R § 3.321(b)(1).

The Board has considered the evidence of record in light of the above, but finds that there has been no showing that the Veteran's IBS or cervical spine DJD has reflected so exceptional or unusual a disability picture as to warrant the assignment of higher ratings on an extra-schedular basis.  See 38 C.F.R.§ 3.321(b)(1).

In a June 2005 VA examination to evaluate the severity of his IBS, the Veteran reported that he was able to work. There was no indication that his IBS disability interfered with his daily activities.

In a September 2010 VA examination the Veteran reported that he used a probiotic (Metagreen), aloe vera extract/juice, acidophilus and one cup of yogurt per day to help control symptoms related to his IBS. He stated that he frequently worked out of the country in Africa and when he worked out of country he was only able to bring approximately one month's worth of supplements to help control his IBS symptoms. When he ran out of supplements he had approximately 4-5 bowel movements per day. In Africa, there are no bathroom facilities in the field where he trained soldiers and he was unable to clean up, like he normally would, after a bowel movement. He reported that he had missed some time of supervision of the soldiers that he was training in order to clean up after a bowel movement and change his clothes. Accordingly, recently he received disciplinary action. He stated that he had not taken 2 jobs in Africa due to his difficulty of balancing work with the need to care for his IBS symptoms.

With regard to his cervical spine disability, the Veteran reported that he was able to perform all activities of daily living at a slower pace. With regard to his military training duties in Africa, he reported that he had to modify equipment use/training techniques that he previously could perform. However, there was no real limitation in his occupational functioning which was more of a supervisory role.

In a September 2010 statement, the Veteran's treating chiropractor reported, in pertinent part, that his cervical spine disability was progressive and exacerbations continued to become more severe and were especially aggravated with prolonged air and automobile travel as well as with carrying heavy gear in a backpack. The chiropractor stated that the Veteran would benefit from limited long distance travel and limited activities that place excessive stress on his cervical spine disability.

In September 2013, the issue of entitlement to extraschedular rating for the IBS and cervical spine DJD disabilities was referred to the Director of Compensation and Pension Service (Director) for an opinion as to whether an extraschedular rating was warranted. In the subsequent January 2014 opinion, the Director explained the basis for the finding that an extraschedular rating was not warranted for the Veteran's IBS and cervical spine DJD disabilities.  The Director noted that the Veteran had not responded to the request to submit additional evidence to substantiate the claim. The Director concluded that the totality of the evidence did not support the contention that the Veteran's IBS and cervical spine DJD disabilities were so unusual or exceptional as to render application of the regular rating criteria impractical.  Thus, entitlement to an extra-schedular rating for the Veteran's IBS and cervical spine DJD disabilities was not established.

The Board finds that the weight of the evidence does not demonstrate that a rating in excess of 10 percent for irritable bowel syndrome and rating in excess of 10 percent and 20 percent for cervical spine degenerative joint disease, on an extra-schedular basis are warranted.  To the extent that the available schedular ratings for the service-connected IBS and cervical spine DJD disabilities are inadequate, the persuasive evidence simply does not support a finding that the disabilities have "markedly" interfered with his ability to be employed or resulted in repeated hospitalizations (the Veteran makes no assertions of repeated hospitalizations).  Here, regarding his IBS disability, the Veteran was able, satisfactorily, for the most part, to supervise soldiers he was hired to train although it is documented that he had missed some time of supervision of the soldiers in order to clean up after a bowel movement and change his clothes. With regard to his cervical spine DJD disability, although the Veteran had to modify equipment use/training techniques that he previously could perform, he had no real limitation in his occupational functioning which was more of a supervisory role. Further, the Board would reiterate that the Veteran did not respond to the September 2013 request to submit evidence showing marked interference with employment.

The weight of the evidence demonstrates that the Veteran's industrial capacity has been impaired, to some degree, as a result of his service-connected IBS and cervical spine DJD disabilities given that he had to pass on accepting 2 assignments in Africa due to his difficulty of balancing work with the need to care for his IBS symptoms and that he was encouraged to limit long distance travel and activities that placed excessive stress on his cervical spine disability.  However, the Board finds that the weight of the evidence does not show that his disabilities have impacted his employability to an extent greater than what is already contemplated in the assigned 10 percent (IBS) and 10 and 20 percent ratings (cervical spine DJD).  See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired).

Under these circumstances, the Board must conclude that disability ratings in excess of 10 percent for service-connected IBS and 10 and 20 percent for cervical spine DJD, on an extra-schedular basis pursuant to 38 C.F.R. § 3.321, must be denied.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence does not support the assignment of a higher rating on an extra-schedular basis, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


ORDER

Entitlement to a rating in excess of 10 percent for irritable bowel syndrome (IBS), on extra-schedular basis pursuant to 38 C.F.R. § 3.321(b) is denied.  

Entitlement to ratings in excess of 10 percent (February 1, 2005 to April 12, 2010) and 20 percent (from April 12, 2010) for cervical spine degenerative joint disease (DJD), on extra-schedular basis pursuant to 38 C.F.R. § 3.321(b) is denied.  



____________________________________________
K. J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs