Citation Nr: 1540382 Decision Date: 09/21/15 Archive Date: 10/02/15 DOCKET NO. 11-07 840 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an initial rating higher than 10 percent for ulcerative colitis for the period from February 25, 2010 to June 6, 2010. 2. Entitlement to an initial rating higher than 30 percent for ulcerative colitis for the period since June 7, 2010. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The Veteran served on active duty from September 2001 to December 2002. This matter is before the Board of Veterans' Appeals (Board) on appeal of an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, that granted service connection and a 10 percent rating for ulcerative colitis, effective February 25, 2010. In April 2011, the Veteran withdrew her request for a travel board hearing. A September 2012 RO decision denied a claim for a TDIU. A January 2013 RO decision increased the rating for the Veteran's service-connected ulcerative colitis to 30 percent, effective June 7, 2010. Since that grant does not represent a total grant of benefits sought on appeal, the claims for increase remained before the Board. AB v. Brown, 6 Vet. App. 35 (1993). In May 2015, the Veteran raised issues of entitlement to service connection for migraine headaches; degenerative disc disease of the lumbar spine; spasmodic torticollis; and for a leg length discrepancy. She also raised an issue of entitlement to an increase in a 10 percent rating for residuals of a right femoral neck stress fracture. Those issues are not before the Board at this time and are referred to the RO for appropriate action. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. For the period from February 25, 2010 to June 6, 2010, the Veteran's ulcerative colitis was manifested by moderately severe symptoms with frequent exacerbations. 2. For the period since June 7, 2010, the Veteran's ulcerative colitis is manifested by no more than moderately severe symptoms with frequent exacerbations. CONCLUSIONS OF LAW 1. The criteria for an initial 30 percent rating, but no higher, for ulcerative colitis for the period from February 25, 2010 to June 6, 2010, have been met. 38 U.S.C.A. § 1155, 5107 (West 2014); 38 C.F.R. § 4.114, Diagnostic Codes 7323 (2015). 2. The criteria for an initial rating higher than 30 percent for ulcerative colitis for the period since June 7, 2010, have not been met. 38 U.S.C.A. § 1155, 5107 (West 2014); 38 C.F.R. § 4.114, Diagnostic Codes 7323 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to provide notice of the information and evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2015). Standard March 2010 and October 2012 letters satisfied the duty to notify provisions for the underlying service connection claim for ulcerative colitis. In any case, the appeal arises from a disagreement with the initially assigned disability rating after service connection was granted. Once a decision awarding service connection, a disability rating, and an effective date has been made, section 5103(a) notice is no longer required because the claim has already been substantiated. VA also has a duty to provide assistance to substantiate a claim. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c). The Veteran's service treatment records have been obtained. Post-service VA treatment records have also been obtained. The Veteran was provided with VA examinations in March 2010 and October 2012. The examinations are sufficient evidence for deciding the claim. The reports are adequate as they are based upon consideration of the Veteran's prior medical history and examinations, describe the disability in sufficient detail so that the Board's evaluation is a fully informed one, and contain reasoned explanations. Thus, VA's duty to assist has been met. II. Analysis Ratings for service-connected disabilities are determined by comparing the veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. Part 4 (2015). When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2015). The Board will consider entitlement to staged ratings to compensate for times during the rating period when the disability may have been more severe than at other times during the course of the rating period on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009). The words slight, moderate, and severe as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. 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 (2015). It should also be noted that use of terminology such as severe by VA examiners and others, although an element 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 (2015). The Veteran's ulcerative colitis is rated under 38 C.F.R. § 4.114, Diagnostic Code 7323, which provides for a 10 percent disability rating when there is moderate ulcerative colitis with infrequent exacerbations. A 30 percent rating is warranted for moderately severe ulcerative colitis with frequent exacerbations. A 60 percent rating is warranted for severe ulcerative colitis with numerous attacks per year and malnutrition, with only fair health during remissions. A maximum 100 percent rating is warranted for pronounced ulcerative colitis that results in marked malnutrition, anemia, and general debility, or where there is ulcerative colitis with serious complications such as liver abscesses. 38 C.F.R. § 4.114, Diagnostic Code 7323. The RO has rated the Veteran's ulcerative colitis as 10 percent disabling for the period from February 25, 2010 to June 6, 2010. For the period since June 7, 2010, the Veteran's ulcerative colitis has been rated as 30 percent disabling. Thus, the Board must consider whether the Veteran is entitled to an initial rating higher than 10 percent for ulcerative colitis for the period from February 25, 2010 to June 6, 2010, and an initial rating higher than 30 percent for ulcerative colitis for the period since June 7, 2010. From February 25, 2010 to June 6, 2010 VA treatment records dated from February 2009 to December 2009 show treatment for multiple disorders, including ulcerative colitis. A March 2010 VA gastrointestinal examination report included a notation that the Veteran's claims file was reviewed. The Veteran reported that she had an onset of ulcerative colitis in 2008 and that it had been intermittent with remissions since that time. She stated that she was currently taking medication for her ulcerative colitis. She indicated that she did not have a history of trauma to the intestines or a history of intestinal neoplasms. It was noted that there was no history of nausea. The Veteran reported that she did have a history of vomiting which occurred less than weekly. She stated that she did not have a history of constipation. She maintained that she had a history of diarrhea that occurred one to four times daily and that the constancy of the diarrhea was persistent. It was noted that there was no history of a fistula. The Veteran indicated that she had a history of intestinal pain in the right and left lower quadrant that occurred daily, was colicky and crampy, and that would last from thirteen to twenty-four hours in duration. She described her intestinal pain as severe. The Veteran maintained that she would have five to six attacks of ulcerative colitis per year. It was noted that there were no episodes of abdominal colic; nausea or vomiting; and abnormal distention consistent with a partial bowel obstruction. The examiner reported that the Veteran's overall general health was good. The examiner stated that the Veteran had no significant signs of weight loss or malnutrition and that there were no signs of anemia. It was noted that the Veteran did not have any abdominal masses and that there was no abdominal tenderness. The diagnosis was ulcerative colitis. The examiner reported that the Veteran was unemployed and that she was not retired. The examiner stated that the Veteran had been unemployed for one to two years because of a recent baby. The examiner maintained that the Veteran's ulcerative colitis did not affect her usual daily activities. VA treatment records date from April 2010 to June 2010 show treatment for disorders including ulcerative colitis. For example, a May 2010 VA gastroenterology diagnostic study report indicated that a colonoscopy related an impression of mildly active ulcerative colitis in the distal colon. A May 2010 addendum indicated that the pathology was reviewed and that the Veteran had mild chronic colitis with no epithelial dysplasia noted. A June 7, 2010 VA treatment entry noted that the Veteran was seen for a follow-up for left-sided ulcerative colitis. The Veteran indicated that she was still having intermittent, crampy, abdominal pain and diarrhea despite taking twelve tablets of Mesalamine daily. She stated that if she missed any of the pills, she would become more symptomatic. The Veteran also complained of daily heartburn which was usually worse in the morning. It was noted that the Veteran was taking Ranitidine at night and that it only slightly helped. The Veteran maintained that she was not able to work due to her symptoms flaring-up at unpredictable times and that she worked as a waitress. She reported that her symptoms made it difficult while caring for her children at home. The diagnosis was severe distal ulcerative colitis which was difficult to control despite maximal therapy with Mesalamine. The examiner noted that the Veteran had flare-ups of her ulcerative colitis if she decreased her medication below the maximum amount. The Board finds that for the period from February 25, 2010 to June 6, 2010, there is a reasonable basis for concluding that the Veteran's ulcerative colitis was moderately severe with frequent exacerbations as required for a 30 percent rating under Diagnostic Code 7323. A March 2010 VA gastrointestinal examination report noted that the Veteran reported symptoms of her ulcerative colitis that included vomiting that occurred less than weekly; diarrhea that occurred one to four times daily and was constant and persistent; intestinal pain in the right and left lower quadrants that occurred daily, was colicky and crampy, and that would last from thirteen to twenty-four hours. The Veteran also reported that her intestinal pain was severe and that she would have five to six attacks of ulcerative colitis per year. The examiner stated that the Veteran's overall general health was good and that she did not have significant signs of weight loss, malnutrition, or anemia. The Board observes that a May 2010 gastroenterology diagnostic study report indicated that a colonoscopy related an impression of mildly active ulcerative colitis in the distal colon. A June 7, 2010 VA treatment entry related a diagnosis of severe distal ulcerative colitis which was difficult to control despite maximal therapy with Mesalamine. The Veteran stated, at that time, that she was still having intermittent, crampy, abdominal pain and diarrhea despite taking twelve tablets of Mesalamine daily. The Board cannot conclude that the evidence does not show that the Veteran suffered moderately severe ulcerative colitis with frequent exacerbations during the period from February 25, 2010 to June 6, 2010. The RO assigned a 30 percent rating based on the June 7, 2010 VA treatment entry discussed above. The Board cannot conclude that the Veteran's ulcerative colitis solely increased in severity on that day. The evidence clearly does not show that the Veteran's ulcerative colitis was indicative of severe symptoms with numerous attacks per year and malnutrition, with only fair health during remissions, as required for a 60 percent rating under Diagnostic Code 7323. There is no evidence that the Veteran had malnutrition or was only in fair health during the period from February 25, 2010 to June 6, 2010. The VA examiner, pursuant to the March 2010 VA gastrointestinal examination report, specifically indicated that the Veteran's overall general health was good and that she had no significant signs of weight loss, malnutrition, or anemia. As this is an initial rating case, consideration has been given to "staged ratings" (different percentage ratings for different periods of time, since the effective date of service connection, based on the facts found). Fenderson, 12 Vet. App. at 119. The Board notes, however, that staged ratings are not indicated in the present case, as the Board finds the Veteran's ulcerative colitis has been 30 percent disabling for the period from February 25, 2010 to June 6, 2010. Thus, a higher rating to 30 percent, and no higher, is warranted for ulcerative colitis for the period from February 25, 2010 to June 6, 2010. The Board has considered the benefit-of-the-doubt rule in making the current decision, but the preponderance of the evidence is against a 60 percent rating for ulcerative colitis for this period. 38 U.S.CA. § 5107(b) (2014); 38 C.F.R. §§ 3.102, 4.3 (2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (CONTINUED ON NEXT PAGE) Since June 7, 2010 VA treatment records dated from June 2010 to July 2011 refer to continued treatment for disorders including ulcerative colitis. For example, an August 2010 VA treatment entry related an impression of ulcerative colitis, fairly stable on Mesalamine. A December 2010 VA treatment report indicated an assessment that included ulcerative colitis. In a February 2011 VA Form 9, the Veteran reported that despite taking the maximum medication dosage for her ulcerative colitis, she would have problems about every fifteen to sixty days. She stated that she would have to use enemas to reduce the effects of her ulcerative colitis. She maintained that she had flare-ups five to six times per month. The Veteran also indicated that her ulcerative colitis would cause her to pass out. She reported that her condition had an impact on her psyche due to the fact that her physical health condition was so disrupted. She stated that her condition limited what she could do both psychologically and physically. An October 2012 VA gastrointestinal examination report noted that the Veteran reported that her ulcerative colitis was painful and severe. She stated that she would have bloody stools with mucus and that her weight would go up and down. She also indicated that she had severe diarrhea and constipation. The Veteran maintained that she would have five bowel movements per day with a gaseous component. She reported that she was on the maximum dose of Mesalamine, but that she still had severe symptoms. The Veteran indicated that her symptoms were severe, but that they were unchanged since the last examination. The examiner reported that the Veteran required continuous medication for control of her ulcerative colitis and that she was taking Mesalamine. It was noted that the Veteran had not undergone surgical treatment for her ulcerative colitis. The examiner indicated that the Veteran had signs and symptoms attributable to her ulcerative colitis which included diarrhea, with five bowel movements per day and gaseous stools; alternative diarrhea and constipation, with her constipation lasting up to two days: abdominal distension, daily; nausea, occasionally, but when it was severe it included vomiting; and vomiting, occasionally, but when it was severe, she also had nausea. The examiner indicated that the Veteran had episodes of bowel disturbances with abdominal distress that involved more or less constant abdominal distress. The examiner stated that the Veteran had exacerbations or attacks of her ulcerative colitis seven or more times in the past twelve months. It was noted that the Veteran did not have weight loss attributable to her ulcerative colitis. The examiner indicated that the Veteran did not have malnutrition or serious complications or other health effects that were attributable to her ulcerative colitis. The examiner stated that the Veteran did not have benign or malignant neoplasms or metastases related to her ulcerative colitis. It was noted that the Veteran underwent a blood profile and that her red blood count was 4.71. The diagnosis was ulcerative colitis. The examiner indicated that the Veteran's ulcerative colitis did affect her ability to work. The examiner stated that the Veteran reported that when she was waitressing, she would have gas and diarrhea and she could not be around people. It was noted that the Veteran had not worked since she was diagnosed with ulcerative colitis and that she was at home taking care of her kids. Subsequent VA treatment records dated through July 2015 refer to continued treatment for multiple disorders including ulcerative colitis. For example, a March 2015 VA treatment entry indicated that the Veteran was seen for a follow-up of her ulcerative colitis, gastroesophageal reflux disease (GERD), and hiatal hernia. It was noted that the Veteran underwent an esophagogastroduodenoscopy in October 2012 which revealed a hiatal hernia and moderate reflux esophagitis. The Veteran indicated that she had frequent flare-ups of ulcerative colitis with frequent bowel movements and blood and mucous in her stools. She stated that she would try to cut out one Mesalamine per day, but find that she would have to take all four capsules. The Veteran denied any weight loss or changes in her appetite. She stated that her GERD was controlled if she was taking Pantoprazole. It was noted that the Veteran's red blood count was 4.82. The impression included ulcerative colitis with flare-ups despite Apriso. Based on the medical evidence, the Board finds that the Veteran's ulcerative colitis is no more than 30 percent disabling for the period since June 7, 2010 under Diagnostic Code 7323. An October 2012 VA gastrointestinal examination report noted that the Veteran reported symptoms including painful and severe ulcerative colitis; bloody stools with mucus; that her weight would go up and down; severe diarrhea and constipation; and that she had five bowel movements per day with a gaseous component. The examiner reported that the Veteran had signs and symptoms attributable to her ulcerative colitis which included diarrhea, with five bowel movements per day and gaseous stools; alternative diarrhea and constipation, with her constipation lasting up to two days: abdominal distension, daily; and nausea and vomiting. It was noted that the Veteran had exacerbations or attacks of her ulcerative colitis seven or more times in the past twelve months. The examiner specifically indicated that the Veteran did not have malnutrition or serious complications or other health effects that were attributable to her ulcerative colitis. Subsequent VA treatment records referred to essentially similar symptoms including frequent flare-ups of ulcerative colitis with frequent bowel movements and blood and mucus in her stools. Such records also refer to other non-service connected gastrointestinal disorders such as a hiatal hernia and GERD. The evidence clearly does not show that the Veteran's ulcerative colitis is indicative of severe symptoms with numerous attacks per year and malnutrition, with only fair health during remissions, as required for a 60 percent rating under Diagnostic Code 7323 for the period since June 7, 2010. Although the Veteran has been diagnosed with severe ulcerative colitis at times, there is no evidence that she has malnutrition or was only in fair health during the period since June 7, 2010. The Veteran has reported that her ulcerative colitis has disrupted her health. However, the examiner, pursuant to the October 2012 VA gastrointestinal examination report, specifically indicated that the Veteran did not have malnutrition or serious complications or other health effects that were attributable to her ulcerative colitis. There is simply no medical evidence of record during the period since June 7, 2010 showing that the Veteran has malnutrition with only fair health during remissions. The evidence is solely indicative of moderately severe ulcerative colitis with frequent exacerbations as required for the current 30 percent rating under Diagnostic Code 7323. As this is an initial rating case, consideration has been given to "staged ratings" (different percentage ratings for different periods of time, since the effective date of service connection, based on the facts found). Fenderson, 12 Vet. App. at 119. However, staged ratings are not indicated in the present case, as the Board finds the Veteran's ulcerative colitis has continuously been 30 percent disabling for the period since June 7, 2010. The preponderance of the evidence is against the claim for entitlement to an initial rating higher than 30 percent for ulcerative colitis for the period since June 7, 2010; there is no doubt to be resolved; and a higher rating is not warranted. 38 U.S.CA. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 49. Moreover, the evidence shows that the Veteran's service-connected ulcerative colitis results in symptoms including diarrhea, with five bowel movements per day and gaseous stools; alternative diarrhea and constipation, with her constipation lasting up to two days: abdominal distension, daily; and nausea and vomiting, as well as frequent exacerbations. The Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation for the service-connected ulcerative is adequate, and referral for extraschedular consideration is not warranted. Thun v. Peake, 22 Vet. App. 111 (2008); 38 C.F.R. § 3.321(b)(1) (2014). The Veteran has raised a claim for a TDIU and that issue is discussed in the remand section below. (CONTINUED ON NEXT PAGE) ORDER An initial higher rating of 30 percent is granted for ulcerative colitis for the period from February 25, 2010 to June 7, 2010, subject to the laws and regulations governing the payment of monetary awards. An initial rating higher than 30 percent for ulcerative colitis for the period since June 7, 2010 is denied. REMAND The remaining issue on appeal is entitlement to a TDIU. The Board notes that in a September 2012 rating decision, the RO denied a claim for a TDIU because she did not complete and return VA Form 21-8940. In October 2012, VA received her formal claim, in which she indicated that she could not work because of her service-connected major depressive disorder and ulcerative colitis. The Board observes that the RO issued a supplemental statement of the case in March 2013 that listed an issue of entitlement to a TDIU. Under Rice v. Shinseki, the Board has jurisdiction over the Veteran's TDIU claim as part and parcel of the Veteran's increased rating claim for ulcerative colitis. Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a request for TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, is part of a claim for increased compensation). However, before a decision can be made on this issue, the Board concludes that a remand is necessary for an examination and opinion to determine whether the Veteran is unemployable as the result of her service-connected disorders. Accordingly, this issue is REMANDED for the following actions: 1. Schedule the Veteran for VA examination regarding TDIU to assess the impact of the Veteran's service-connected disabilities: major depressive disorder (70 percent); residuals of a right femoral neck stress fracture (10 percent); and ulcerative colitis (30 percent), on her ability to perform physical and mental tasks in a work-like setting. The examiner must review the claims file. The examiner should conduct any appropriate tests and studies in order to determine the nature and extent of the social and industrial impairment attributable to the Veteran's service-connected disabilities. In doing so, the examiner should take into consideration the Veteran's level of education, special training, and previous work experience, but not her age or any impairment caused by nonservice-connected disabilities. In offering any opinion, the examiner should consider all the evidence of record, to include the lay statements submitted by or on behalf of the Veteran. A complete rationale for any opinion offered should be provided, based on his or her clinical experience and medical expertise. 2. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefit sought is not granted, the Veteran and her representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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 of Veterans' Appeals 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). ______________________________________________ S. HENEKS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs