Citation Nr: 1646834 Decision Date: 12/14/16 Archive Date: 12/21/16 DOCKET NO. 13-00 079A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to a higher rating than 40 percent for status post colon resection with irritable bowel syndrome and diverticulitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty from May 1969 to December 1970, from June 1975 to June 1978, and from March 1991 to November 2002. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2012 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The appeal originated as from the Veteran's disagreement with the reduction in rating from 40 to 20 percent of his service-connected gastrointestinal disorder. The Board's April 2015 decision/remand restored the 40 percent rating effective May 29, 2012, but by accompanying remand, recognized further the claim for increased rating for gastrointestinal disability and directed another VA examination. The case has returned for appellate disposition. FINDINGS OF FACT 1. The Veteran is already rated at the maximum 40 percent for status post large intestine resection, and there is no other potentially applicable rating provision warranting greater compensation. 2. There is evidence of residual occasional moderate fecal leakage due to large intestine resection. CONCLUSIONS OF LAW 1. The criteria are not met for an evaluation higher than 40 percent for status post colon resection with irritable bowel syndrome and diverticulitis. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27, 4.113; 4.114, Diagnostic Code 7329 (2016). 2. Resolving reasonable doubt in the Veteran's favor, the criteria are met to award a separate 10 percent rating for occasional fecal incontinence. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27, 4.113; 4.114, Diagnostic Code 7332 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duty to Notify to Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2014) provides VA's duties to notify and assist a claimant with development of a claim for compensation benefits. See also, 38 C.F.R. §§ 3.102, 3.159 and 3.326 (2016). VCAA notice must, upon receipt of a complete or substantially complete application for benefits, inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will obtain on his behalf. By May 2012 correspondence the Veteran was provided satisfactory and timely VCAA notice. He was given proper assistance through obtaining VA outpatient records, and a VA Compensation and Pension examination including as requested by prior Board remand. VA examinations have been provided that addressed the key issues. The Veteran provided additional private medical records in furtherance of the claim. He declined the opportunity for a hearing. The claim has been properly developed, and can be decided. Applicable Law and Factual Background Under generally applicable law, disability evaluations are determined applying VA's rating schedule. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2016). Each service-connected disability is rated based on criteria identified by diagnostic codes. 38 C.F.R. § 4.27. When reasonable doubt arises as to the degree of disability the issue will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Currently the Veteran is rated 40 percent for service-connected gastrointestinal disability, i.e., status post colon resection with irritable bowel syndrome and diverticulitis. That disorder in entirety has been evaluated at 38 C.F.R. § 4.114, Diagnostic Code 7399-7329 for unspecified gastrointestinal condition rated under Diagnostic Code 7329 for resection, large intestine. See also 38 C.F.R. § 4.27 (rating of conditions unlisted under the VA rating schedule). The Veteran filed the instant claim for increase January 2012. Diagnostic Code 7329 assigns a 40 percent rating where there are severe symptoms, objectively supported by examination findings. A Note to Diagnostic Code 7329 states that where residual adhesions constitute the predominant disability, rate the underlying condition under Diagnostic Code 7301. The terms "moderate" and "severe," amongst other components of the rating criteria are not expressly 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. As further relevant, 38 C.F.R. § 4.113 provides that there are diseases of the digestive system, particularly within the abdomen, which, while differing in the site of pathology, produce a common disability picture characterized in the main by varying degrees of abdominal distress or pain, anemia and disturbances in nutrition. Consequently, certain coexisting diseases in this area, as indicated in the instruction under the title "Diseases of the Digestive System," do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding as outlined in §4.14. The VA rating schedule at 38 C.F.R. § 4.114 accordingly clarifies -- evaluation 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 which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. In regard to the evidence, the August 2009 examination indicated that by relevant history back in 2002, the Veteran underwent partial resection of the large intestine (sigmoid colon) to remove diverticulitis. In 2008, he experienced partial small bowel obstruction resulting in exploratory laparotomy and extensive lysis of adhesions. Reported symptoms were a painful scar on the stomach; cramping and pain on the right and left lower abdomen; intermittent colon infection with bloody mucous stools, that were also soft and semi-watery. Flare-ups occurred every two months, which he handled with increased fluids and decreased food intake. On a daily basis stools were soft and watery. Constipation occurred at least every 2-3 weeks, treated with increased fluid intake and fiber. There was no history of ulcerative colitis. There was not vomiting. There had been weight loss of 40 pounds or more compared to baseline. Overall health was good, without malnutrition, anemia, fistula or abdominal mass. The diagnosis was IBS, with symptomatic diarrhea, constipation and stomach cramps. On VA re-examination May 2012, the diagnosis at the outset was resection of the large intestine; peritoneal adhesions attributable to resection of the large or small intestine. The Veteran complained of pain, nausea, diarrhea and incontinence. Continuous medication was utilized in form of hydrocodone four times a day as needed. There were moderate symptoms attributable to resection of the large intestine, with abdominal pain, diarrhea, nausea, and fecal incontinence (no wearing of a pad). There was no weight loss or inability to gain weight attributable to intestinal surgery. There was no interference with absorption and nutrition (at least, in words of exam report "attributable to resection of the small intestine.") Ileostomy or colostomy were not required. There was no persistent intestinal fistula. There were post-surgical scars, but they were not painful or unstable, nor had total surface area greater than 39 square cm (6 square inches). There was an unremarkable CT scan on the abdomen and pelvis, no evidence of diverticulitis. Impact of the condition upon the Veteran's occupation in the auto sales business (in conjunction with an unrelated heart condition) was having missed time from his job, including 10 days of work in 6 weeks. Records of VA outpatient treatment indicate on a June 2014 GI system consult that he had experienced episodes in February and March 2014 of abdominal cramping/diarrhea/nausea, the latter episode lasting 4 days. He had a similar episode a few days prior, where he had 10 moderate volume loose stools exacerbated by food but relieved with defecation. He had nausea but no vomiting. Pain was mostly in left upper and lower quadrants. He reported nocturnal stools, some with mucous or blood. He had stopped taking Bentyl and Imodium because they were ineffective. He otherwise felt well and gastrointestinal symptoms were his biggest health concern. His symptoms occurred in episodes lasting 1 to 4 days, every 6 to 8 weeks. The assessment reached was that the Veteran's clinical presentation was consistent with IBS, diarrhea type. The goal was to find a modality to reduce the frequency of the episodic symptoms. September 2014 follow up consult denotes the Veteran had "rare intermittent" episodes of abdominal pain and diarrhea, every 6 to 8 weeks. In April 2015, the Veteran was seen at the VA Medical Center (VAMC) emergency room for an acute episode of abdominal pain. There was also sharp bilateral lower quadrant pain radiating to the groin, increased watery stool, and fecal urgency without incontinence. There was no melena/bright blood per rectum, fever/chills, or flank pain. When evaluated in March 2015, the Veteran demonstrated left upper quadrant pain, worse when eating, to the point he could not eat due to pain. He had lost about 10 to 20 pounds. There was alternating constipation / diarrhea. In May 2015, he reported severe abdominal cramping over the week associated with frequent bowel movements. He described nausea, denied vomiting. Stools were soft or loose, occasional diarrhea, no blood or melena, reported mucous. Re-examination occurred in August 2015. The Veteran indicated abdominal tenderness daily. He had a significant flare-up of pain that lasted an entire month from November to December 2014. He stated losing 21 pounds during this time period, and had since regained it. Medical records documented weight loss of 15 pounds from September to December 2014. The Veteran normally had about 6 days per month in which the pain level severely flared-up lasting 1-2 days. He had loose stools 3-4 times daily, and during a flare-up greater than 6 episodes of loose to liquid like stool daily. He stated that he had nausea 2-3 days per week. There was fecal incontinence 1-2 times per week, with sudden urge or a bowel movement and leakage of watery diarrhea. He did not wear any absorbent pads. The examiner then denoted severe symptoms of the underlying GI condition, objectively supported by examination findings, attributable to resection of large intestine. These consisted of pain, nausea and diarrhea; diffuse tenderness to palpation of abdomen; and recent history of weight loss due to pain with eating. There was abdominal and colic pain, in particular with daily cramping and stabbing pain across the Veteran's entire abdomen. The Veteran did not have weight loss or inability to gain weight attributable to intestinal surgery. Regarding whether the Veteran had interference with absorption and nutrition attributable to "resection of the small intestine," the examiner indicated this symptom was "not applicable." The Veteran's intestinal condition had not required an ileostomy or colostomy. Analysis Having reviewed the evidence, the Board preliminarily must deny the claim as it was certified on appeal, that of entitlement to an increased rating beyond 40 percent for service-connected gastrointestinal disability. Material to this determination is that the very rating criteria applied by the Regional Office, Diagnostic Code 7329 for resection of the large intestine has an upper limit of 40 percent. See again, 38 C.F.R. § 4.114. So no matter what signs and symptoms the Veteran has, and, the Board readily acknowledges a "severe" level, the Veteran as a matter of law simply cannot obtain further relief under provisions of that Diagnostic Code 7329. That finding cannot overlook the rest of the VA rating schedule for gastrointestinal disorders. The Veteran is service-connected for status post colon resection with irritable bowel syndrome and diverticulitis. Arguably, there is more than one way to rate such a compound disability. The Board therefore has considered the implications of the change in diagnostic codes, recognizing that any change in diagnostic code by VA must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625 (1992). To this end, however, there is no other diagnostic code that both applies here and would be beneficial. The Veteran does not have severe peritoneal adhesions with partial obstruction shown by x-ray, an upper GI ulcer, resection of the small intestine, ulcerative colitis, or irritable bowel syndrome. Thus, greater compensation under 38 C.F.R. § 4.114, DC 7301, 7319, 7323, or 7328 is not warranted. All the same, recognizing the severity of the Veteran's underlying condition and what section 4.114 does permit in way of assignment of separate ratings, the Board sees that since the 2012 VA examination the Veteran has had at least an occasional degree of moderate fecal incontinence, if not requiring the usage of an absorbent pad. To afford full consideration to the Veteran's appeal, and without contravening VA's rule against duplicative rating of the same symptomatology, a 10 percent separate rating will be assigned under Diagnostic Code 7332 for this associated condition. Accordingly, the claim for increase for gastrointestinal disability is being denied on the merits, whereas the Board is awarding separating compensation to 10 percent as stated above. The preponderance of the evidence substantiates this outcome, VA's benefit-of-the-doubt doctrine being applied to the extent warranted. (CONTINUED ON NEXT PAGE) ORDER A rating higher than 40 percent for status post colon resection with irritable bowel syndrome and diverticulitis is denied. However, a separate rating for occasional fecal incontinence associated with service-connected gastrointestinal disability is granted, effective May 29, 2012, subject to applicable law on VA compensation. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs