Citation Nr: 1530640 Decision Date: 07/17/15 Archive Date: 07/24/15 DOCKET NO. 09-09 423 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to a rating in excess of 10 percent for colonic polyps. 2. Entitlement to a rating in excess of 10 percent for acne. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. R. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1985 to September 2006. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision that was issued by the Regional Office (RO) in Winston-Salem, North Carolina. The case was certified to the Board by the RO in Baltimore, Maryland. In July 2012, the Board remanded this appeal to the Agency of Original Jurisdiction (AOJ) for further development. Records in the Virtual VA paperless claims processing system (Virtual VA) and the Veterans Benefits Management System (VBMS) have been reviewed and considered. The issue of entitlement to a rating in excess of 10 percent for acne is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDING OF FACT The Veteran's colonic polyps are not shown to be productive of severe irritable bowel syndrome with diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for colonic polyps are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, 4.113, 4.114, Diagnostic Code 7344-7319 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist 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 claim for an increased rating for colonic polyps. The claim for a higher rating arises from the Veteran's disagreement with the initial rating assigned in connection with the grant of service connection. The courts have held, and VA's General Counsel has agreed, that where an underlying claim for service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311, 1314-15 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112, 116-7 (2007); VAOPGCPREC 8-2003 (2003). The United States Court of Appeals for Veterans Claims (Court) has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as a disability rating) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105. Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA obtained all service treatment, VA treatment, and private records identified by the Veteran. In addition, the Veteran was afforded VA examinations in August 2006 and September 2012. The examinations were conducted by medical professionals who solicited symptomatology from the Veteran, conducted thorough examinations, and provided a rationale for the conclusions given. They are, therefore, adequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). In July 2012, the Board remanded the Veteran's claim for a rating an increased evaluation for colonic polyps to obtain treatment records, and to provide the Veteran with a VA examination to determine the current severity of his colonic polyps. As the requested development has been completed, no further action to ensure compliance with the remand directive is required. Stegall v. West, 11 Vet. App. 268 (1998). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claim for a higher evaluation for colonic polyps is thus ready to be considered on the merits. II. Disability Rating Principles Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In resolving this factual issue, the Board may only consider the specific factors as are enumerated in the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). The Court has held that "staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App 119 (1999). As will be discussed, the disability has not significantly changed and will result in a uniform rating for the entire appeal period. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, separate evaluations for separate and distinct symptomatology may be assigned where none of the symptomatology justifying an evaluation under one Diagnostic Code is duplicative of or overlapping with the symptomatology justifying an evaluation under another Diagnostic Code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Additionally, if two evaluations are potentially applicable, the higher evaluation is assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. In a November 2006 rating decision, the Veteran was granted service connection for colonic polyps and assigned a zero percent evaluation under Diagnostic Code 7344-7319, effective October 1, 2006. Subsequently, in a December 2012 rating decision, the Veteran's evaluation for colonic polyps was increased to 10 percent, effective October 1, 2006. Diagnostic Code 7319 provides ratings for irritable colon syndrome (spastic colitis, mucous colitis, etc.). Mild irritable colon syndrome, with disturbances of bowel function with occasional episodes of abdominal distress, is rated noncompensably (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. Ratings under Diagnostic Codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348, inclusive, will not be combined with each other. A single rating will be assigned under the diagnostic code that reflects the predominant disability picture, with elevation to the next higher rating where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114. In August 2006, the Veteran underwent a VA examination to evaluate the severity of his colonic polys. The VA examiner reported that the Veteran underwent a colonoscopy in 2002, which revealed three sessile polyps. He underwent another colonoscopy in May 2006, which showed five additional adenomas. The Veteran stated that he had no problems with bleeding, but did have some flatulence and took Metamucil to regularize his stool. In August 2006, the Veteran had another colonoscopy. The procedure showed four sessile polyps in the distal sigmoid colon, in the proximal descending colon, in the proximal ascending colon, and in the mid ascending colon. Lastly, in September 2012, the Veteran was afforded another VA examination to determine the severity of his colonic polyps. The VA examiner reported that the Veteran had a third colonoscopy, which found one benign sessile polyp. He diagnosed irritable bowel syndrome manifested by intermittent alternating diarrhea and constipation, and flatulence. The Veteran denied fecal urgency and incontinence. The VA examiner indicated that the Veteran did not require continuous medication to control his intestinal condition; did not have episodes of bowel disturbance with abdominal distress, or exacerbations, or attacks of the intestinal condition; and, did not have weight loss or malnutrition attributable to his intestinal condition. After a careful review of the evidence, the Board finds that the evidence is against a 30 percent evaluation for the Veteran's service-connected colonic polyps. Upon examination the Veteran endorsed symptoms of intermittent alternating diarrhea and constipation, but denied fecal urgency and incontinence. Additionally, the Veteran denied episodes of bowel disturbance. The evidence is against a 30 percent evaluation as the Veteran's colonic polyps have not been manifested by severe irritable colon syndrome, with diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. 38 C.F.R. § 4.114, Diagnostic Code 7319. Lastly, we note that diagnositic code 7344 does not have specific rating critieria of its own. Therefore, diagnostic code 7344 does not get a separate evaluation. Extraschedular Consideration The Board has considered whether referral for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) is indicated. Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation Service for a rating. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the schedular ratings for the service-connected disability are inadequate. This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria. Thun v. Peake, 22 Vet. App. 111, 115 (2008); aff'd Thun v. Peake, 572 F.3d 1366 (Fed. Cir. 2009). If the criteria reasonably describe a veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate and referral for an extraschedular rating is not required. Thun, Id. Here, the rating criteria reasonably describe and assess the Veteran's disability level and symptomatology pertaining to the colonic polyps. The diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disorder during the appeal period, which was manifested by flatulence, and alternating diarrhea and constipation. The rating schedule fully contemplates symptomatology and treatment associated with the colonic polyps. Finally, the Board notes that under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual condition fails to capture all the service-connected disabilities experienced. In this case there is no lay or medical evidence reflecting that the colonic polyps in concert with any other service-connected disability or disabilities has resulted in an exceptional disability picture. The Veteran is assigned a disability rating that fully contemplates the effects of his service-connected disability. Thus, no basis for referring the case for an extraschedular consideration is presented in this case. Finally, the evidence does not reflect that the Veteran's colonic polyps cause unemployability. Consequently, there is no implicit claim for a total disability rating based on individual unemployability (TDIU). See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). As the preponderance of the evidence is against the claim for a rating in excess of 10 percent for colonic polyps, the benefit-of-the-doubt rule does not apply, and the Board must deny the claim. See U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a rating in excess of 10 percent for colonic polyps is denied. REMAND In July 2012, the Board remanded the Veteran's claim for an increased evaluation for acne to afford him another VA examination. Per an August 2012 email from the AOJ, the Veteran's August 15, 2012, dermatological examination was cancelled on August 1, 2012, because he did not RSVP for the examination. However, the Veteran attended a VA examination that was requested on August 15, 2012, to evaluate the severity of his colonic polyps. The Board notes that there is no regulatory requirement for the Veteran to RSVP for a VA examination. Therefore, a remand is necessary to comply with the Board's July 2012 remand. See Stegall, 11 Vet. App. at 268. Accordingly, the case is REMANDED for the following actions: 1. The Veteran must be scheduled for an examination by a dermatologist to determine the nature and extent of any disability caused by acne. The examiner must be provided access to the claims file and Virtual VA in conducting the examination. The examiner is specifically requested to review the May 2009 examination report to include the color photographs that are of record. Following the examination the examiner is to state if the appellant's acne is manifested by any of the eight characteristics of disfigurement noted above from 38 C.F.R. § 4.118. A complete rationale should be provided for all conclusions that are expressed in the report of examination. . 2. Thereafter, the Veteran's claim should be readjudicated. If the determination remains unfavorable to the Veteran, he and his representative must be provided with a supplemental statement of the case and given an opportunity to respond thereto. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs