Citation Nr: 1536870 Decision Date: 08/28/15 Archive Date: 09/04/15 DOCKET NO. 13-11 503 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to an initial rating in excess of 10 percent for irritable bowel syndrome (IBS). REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD A. VanValkenburg, Associate Counsel INTRODUCTION The Veteran served in the Army National Guard and had active duty from July 1969 to April 1972 as well as a period of active duty for training (ACDUTRA) from January 1985 to May 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa, which granted service connection for IBS and assigned a 10 percent disability rating. FINDING OF FACT Resolving all doubt in favor of the Veteran, irritable bowel syndrome results in alternating diarrhea and constipation with more or less constant abdominal distress. CONCLUSION OF LAW The criteria for a 30 percent rating for irritable bowel syndrome are met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.114, Diagnostic Code (DC) 7319 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION VA's duty to notify and assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2014); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). February 2011, March 2011, and July 2011 notice letters provided adequate preadjudicatory notice to the Veteran addressing the claims for service connection. The Veteran has appealed the initial assigned rating for IBS. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement). Therefore, no further notice is needed under VCAA regarding this issue. The Board is also satisfied that VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes service treatment records, private and VA treatment records, VA examination, and the Veteran's statements. The Veteran was afforded a VA examination to evaluate his IBS. The Board finds that the VA examination obtained was adequate because it was performed by a medical professional, was based on a review of the record and history and symptomatology from the Veteran, and a thorough examination of the Veteran. The rating examination adequately addresses the relevant rating criteria. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any outstanding evidence that needs to be obtained. For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. Disability Rating Laws and Regulations Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran has challenged the initial disability rating assigned for service-connected irritable bowel syndrome, and his lumbar spine disability by seeking appellate review. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (noting distinction between claims stemming from an original rating versus increased rating). Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" rating. Fenderson, 12 Vet. App. at 126. As discussed below, the Board finds that the assignment of a higher 30 percent rating is appropriate for the entire initial rating period on appeal. In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Rating Analysis Irritable Bowel Syndrome Irritable colon syndrome (spastic colitis, mucous colitis, etc.), is evaluated under 38 C.F.R. § 4.114, Diagnostic Code 7319. Under Diagnostic Code 7319, a noncompensable rating is assigned for mild symptoms manifested by disturbances of bowel function with occasional episodes of abdominal distress. A 10 percent disability rating is assigned for moderate symptoms manifested by frequent episodes of bowel disturbance with abdominal distress. A 30 percent disability rating is assigned for severe symptoms manifested by diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. The 30 percent disability rating is maximum schedular rating available for irritable bowel syndrome. 38 C.F.R. § 4.114, Diagnostic Code 7319. The words "mild," "moderate" and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The use of terminology such as "mild" and "moderate" by VA examiners or other physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. 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 (2014). Initial increased rating The Veteran's IBS is currently rated as 10 percent disabling. He contends that his symptoms are more severe. After a review of all the evidence, lay and medical, the Board finds that for the entire rating period, irritable bowel syndrome has been manifested by severe, alternating diarrhea and constipation with constant abdominal distress. The Veteran was afforded a VA digestive examination in April 2011. The Veteran reported multiple bowel urges with bowel movements 2 to 3 times per day, sometimes more, and then no bowel movements for a number of days. The bowel movements were unpredictable. He got occasional constipation and abdominal pain and bloating. He also complained of incomplete emptying and medication only helped minimally. He denied vomiting or nausea. His weight remained stable. There was no hernia surgery or evidence of tuberculosis. A June 9, 2011 VA treatment record reflects the Veteran's medication for IBS was changed due to a worsening in symptoms. He was having occasional diarrhea, up to one episode per day. Despite the change in medication, symptoms were noted to persist in a September 15, 2011 record. The Veteran had intermittent diarrhea and constipation which sometimes occurred on the same day. In a November 17, 2011 VA treatment record, the Veteran reported that after a normal bowel movement in the morning, the Veteran had 2-3 loose/liquid bowel movements per day and would not have another bowel movement until the next day. Constipation was rare at this time and there was no unintentional weight loss. A slight improvement for one week was noted in the IBS condition with probiotics in a February 16, 2012 VA treatment record. In a January 27, 2012 VA treatment record, the Veteran was seen for a "recent escalation of symptoms" regarding IBS. The Veteran had bowel movements every other day. He reported a firm stool followed by soft, then liquid in the morning and then he would not have a stool the next day. He had bloating and abdominal pain but no nausea or vomiting. There was no weight loss, blood in stool or anemia. The assessment was chronic diarrhea. Chronic diarrhea was again noted in an April 9, 2012 record. IBS was noted to be stable in a May 17, 2012 record. In an August 23, 2012 VA treatment record the Veteran reported IBS symptoms were more frequent and were interfering with his daily activities due to the short warning of the onset of diarrhea. Symptoms formerly occurred a few times per week but were now happening daily. He was constipated in the morning and would later have 3 episodes of diarrhea in the afternoon. In an October 4, 2012 record the Veteran reported having alternating constipation and diarrhea which had remained unchanged since the prior visit. He did not like to be far from a bathroom or drive very far due to urgency. A March 14, 2013 record indicates occasional abdominal pain and diarrhea related to IBS. The Veteran submitted several statements in support of his claim. In a notice of disagreement received in August 2012, the Veteran reported that his symptoms included alternating diarrhea and constipation on a daily basis. Accompanying the constipation or diarrhea was strong lower abdominal pain. His diarrhea had a very quick onset which made doing anything that was not in the vicinity of toilet facilities impossible. On the Veteran's VA Form 9 he explained that he had constipation followed by 2 or 3 rounds of diarrhea per day. The pain and discomfort that preceded and followed each of the bowel movements took up a large part of the day and night which he considered more or less constant abdominal distress. He also had a feeling of needing to go to the bathroom even though he did not. Resolving reasonable doubt in the Veteran's favor, the Board finds that for the entire rating period the Veteran is entitled to a 30 percent rating for IBS. In doing so, the Board notes the Veteran's symptoms of IBS were at times described as "intermittent" in VA treatment records and the 2011 VA examiner noted only "occasional" constipation and abdominal pain. However, the Veteran has reported complaints of daily constipation followed by sudden onset diarrhea 2 to 3 times per day and associated abdominal pain taking up a large part of the day and night. In considering the subjective nature of the symptomology, the Board finds the Veteran's reports probative. Therefore, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran's IBS is manifested by constant symptoms of alternating constipation and diarrhea with constant abdominal distress. As set forth above, when there is a reasonable doubt as to the rating to be assigned, this doubt will be resolved in the Veteran's favor. See 38 C .F.R. § 5107(b); 38 C.F.R. § 3.102, 4.3, 4.7; Gilbert, 1 Vet. App. at 49. Accordingly, the Board resolves all reasonable doubt in favor of the Veteran and concludes that the criteria for a 30 percent rating for irritable bowel syndrome under DC 7319 for the entire appeal period are met. The Board finds that for the entire rating period, the Veteran is not entitled to a higher evaluation, in excess of 30 percent, under other provisions of the code. See Schafrath, 1 Vet App. at 595. The Board finds irritable bowel syndrome is the Veteran's predominant disability under 38 C.F.R. § 4.114; therefore, consideration of additional diagnostic codes must be limited to separate and distinct abdominal conditions or diagnostic codes that provide for a disability rating in excess of 30 percent. 38 C.F.R. §§ 4.14, 4.113, 4.114. The evidence of record, as a whole, does not reflect complaints related to ulcerative colitis, malnutrition, weight loss, severe impairment of health, impairment of sphincter control, or stricture or prolapse of the rectum or anus to warrant a higher rating under other available diagnostic codes under the rating criteria for the digestive system. See 38 C.F.R. § 4.114. Moreover, the records does not show problems with sphincter control, no evidence of fissures or fecal leakage, no evidence of weight loss, vomiting or nausea, ulcerative colitis, or anemia, and no malnutrition or serious complications or other general health effects related to irritable bowel syndrome. Therefore, the Board finds that a separate or higher rating under other potentially applicable diagnostic codes is not warranted. For the reasons discussed above, the Board finds the weight of the evidence supports a disability rating of 30 percent, but no higher, for irritable bowel syndrome. Extraschedular Considerations The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon 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 that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected back disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's IBS with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. The schedular rating criteria specifically provide for disability ratings for irritable colon syndrome or irritable bowel syndrome, based on symptoms of abdominal distress, diarrhea, and constipation. In this case, considering the lay and medical evidence, the Veteran's disability is manifested by symptoms of severe, alternating diarrhea and constipation with constant abdominal distress. Thus, the Veteran's current schedular ratings under the general rating criteria for disabilities of the digestive system are adequate to fully compensate his for the disability on appeal. In short, the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an initial rating of 30 percent, but no more, for irritable bowel syndrome is granted. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs