Citation Nr: 1618953 Decision Date: 05/11/16 Archive Date: 05/19/16 DOCKET NO. 13-22 653 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for irritable bowel syndrome (IBS) prior to May 22, 2013. REPRESENTATION Veteran represented by: Karl Kazmierczak, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K.C. Spragins, Associate Counsel INTRODUCTION The Veteran had active service in the United States Air Force from May 1968 to July 1972. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In a February 2011 decision, the Board granted entitlement to service connection for IBS. The November 2011 rating decision implemented this grant and assigned a noncompensable rating for IBS effective from December 11, 2006. The Veteran filed a timely notice of disagreement in January 2012. Within one year of that rating decision, a January 2012 VA examination was scheduled for the Veteran, but he refused to report for the examination. See December 2011 Statement in Support of Claim. A subsequent February 2012 rating decision reconsidered the initial rating assigned and determined that it should be continued. Thus, this matter is appropriately considered an "initial rating claim" stemming from the Veteran's original claim of service connection pursuant to Fenderson v. West, 12 Vet. App. 119 (1999). In a June 2013 rating decision, the RO increased the disability rating for IBS to 10 percent effective from December 11, 2006, and 30 percent effective from May 22, 2013. The Veteran testified before the undersigned Veterans Law Judge during a videoconference hearing in February 2016. A transcript of that proceeding is associated with the Veterans Benefits Management System (VBMS) folder. During the hearing, the Veteran testified that he was satisfied with the 30 percent rating assigned for IBS effective from May 22, 2013, and he was only seeking entitlement to an initial rating in excess of 10 percent for IBS prior to May 22, 2013. See February 2016 Board Hearing Transcript, page 2. Given the foregoing, the issue on appeal has been characterized as listed on the title page. See AB v. Brown, 6 Vet. App. 35 (1993). This appeal was processed using the Virtual VA paperless claims processing system and VBMS. Accordingly, any future consideration of this case should take into consideration the existence of these records. FINDING OF FACT From December 11, 2006 to May 21, 2013, the Veteran's IBS has more nearly approximated severe symptoms of alternating diarrhea and constipation, with more or less constant abdominal distress. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, from December 11, 2006 to May 21, 2013, the criteria for an initial disability rating of 30 percent, but no higher, for IBS have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 7104 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.1, 4.3, 4.7, 4.10, 4.14, 4.20, 4.21, 4.114, Diagnostic Code 7399-7319 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). In this case, the Veteran is challenging the initial evaluation assigned following the grant of service connection for his IBS. In cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006); VAOPGCPREC 8- 2003 (December 22, 2003). Thus, VA's duty to notify has been satisfied. 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 the 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, the AOJ obtained the Veteran's service treatment records and all identified and available post-service treatment records. The Veteran also received a VA examination in connection with his claim in August 2007. The Board finds that this VA examination is adequate for rating purposes as it fully addresses the rating criteria and evidence of record that are relevant for rating the Veteran's IBS. As such, the Board finds that there is adequate medical evidence of record to make a determination on the claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In addition, the Veteran had the opportunity to testify in support of his claims during a February 2016 Board hearing. During the hearing, the undersigned Veterans Law Judge (VLJ) explained the issues on appeal, asked questions focused on the elements necessary to substantiate the claims, and sought to identify any further development that was required. These actions satisfied the duties a VLJ has to explain fully the issues and to suggest the submission of evidence that may have been overlooked. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010) (holding that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board). Significantly, the Veteran has not contended, and the evidence has not otherwise shown, that the undersigned VLJ failed to comply with 38 C.F.R. § 3.103(c)(2) or otherwise committed prejudicial error, either by failing to fully explain the issues or by neglecting to suggest the submission of evidence that may have been overlooked. Moreover, there is no indication that the Veteran was otherwise denied due process during his Board hearing. In light of the foregoing, the Board finds that VA's duties to notify and assist have been satisfied, and, thus, appellate review may proceed without prejudice to the Veteran. II. Law and Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service connected disorder. 38 U.S.C.A. § 1155. The evaluation of a service-connected disorder requires a review of a veteran's entire medical history regarding that disorder. 38 U.S.C.A. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service connected disorder. 38 U.S.C.A. § 1155. The evaluation of a service-connected disorder requires a review of a veteran's entire medical history regarding that disorder. 38 U.S.C.A. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Evidence to be considered in an appeal from an initial disability rating was not limited to that reflecting the then current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson, 12 Vet. App. at 126-27; Hart v. Mansfield, 21 Vet. App. 505 (2007). Such separate disability ratings are known as staged ratings. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As discussed above, the Veteran is in receipt of a 10 percent disability rating for IBS for the period from December 11, 2006 to May 21, 2013. His IBS is rated under 38 C.F.R. § 4.114, Diagnostic Code 7399-7319. The hyphenated code is intended to show that the Veteran's service-connected disability is rated by analogy to irritable colon syndrome (spastic colitis, mucous colitis, etc.) under Diagnostic Code 7319. See 38 C.F.R. § 4.20 (an unlisted condition may be rated under a closely related disease or injury in which the functions affected, anatomical localization, and symptomatology are closely analogous); 38 C.F.R. § 4.27 (unlisted disabilities rated by analogy are coded first by the numbers of the most closely related body part and then "99"). Under Diagnostic Code 7319, mild irritable colon syndrome, with disturbances of bowel function with occasional episodes of abdominal distress, is awarded a noncompensable (0 percent) rating. Moderate irritable colon syndrome, with frequent episodes of bowel disturbance with abdominal distress, is rated as 10 percent disabling. Severe irritable colon syndrome, with diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress, is rated as 30 percent disabling. 38 C.F.R. § 4.114. With regard to coexisting abdominal conditions, VA regulation recognizes 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. 38 C.F.R. § 4.113 (2015). Consequently, certain coexisting diseases in this area do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding as outlined in § 4.14. Id. Rather, 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. 38 C.F.R. § 4.114. The Board also notes that, with regard to the schedule of ratings for the digestive system, section 4.114 expressly prohibits, in pertinent part, the combination of ratings under Diagnostic Codes 7301 to 7329, inclusive, which include the schedular criteria for irritable colon syndrome (Diagnostic Code 7319). In this case, the record contains a January 2007 statement from the Veteran's girlfriend in which she reported that the Veteran experienced flare ups of his IBS. She indicated that the Veteran could suffer from extreme stomach pain, and his stomach could become distended and hard as a result of bloating and gas. She stated that the Veteran constantly needed to use the bathroom. In addition, the Veteran reportedly avoided certain foods and social activities due to his IBS. The Veteran was provided with a VA examination for his IBS in August 2007. The Veteran reported having a history of intermittent loose diarrheal stools followed by constipation. The examiner stated that he had a history of bloating gas, distension, and crampy abdominal pain. The Veteran took Clidinium every eight hours. The examiner noted that the Veteran's medical history did not include a hernia surgery, malignancy, or peritoneal tuberculosis. Based on the Veteran's report of prior endoscopies, the examiner noted that that he possibly had colitis. However, the examiner added that this diagnosis had not been verified by the examiner's review of the medical record. The physical examination revealed that there was no residual malignancy, and the Veteran did not have an inguinal or ventral hernia. The diagnosis was IBS. In a March 2010 letter, Dr. C. stated that the Veteran had a history of IBS and Helicobacter pylori (H. pylori). He also was taking different medications, including Prevpac, Librax, and Prilosec. Dr. B. later reported in a June 2010 letter that he had last seen the Veteran in 2005 for abdominal bloating and gas. He noted that there had been a question of whether the Veteran had underlying colitis, and Dr. B. recommended a colonoscopy at that time. However, this test was not performed as the Veteran did not return. Dr. B. stated that he had never performed a colonoscopy or endoscopy on the Veteran, and the Veteran's last colonoscopy was in the distant past. Dr. B. additionally noted that the Veteran had recently received antibiotics for a presumed H. pylori infection. The Veteran stated that his symptoms had recurred after an initial improvement. Since 2005, the Veteran had been doing fine except for chronic complaints of an abdominal bloating sensation, urgency, or bowel movement. The Veteran also reported having blood per his rectum on intermittent basis. The Veteran denied having nausea, vomiting, anorexia, or weight loss. The examiner also found that there was no chest pain, shortness of breath, fever, chills, sweats, anorexia, or weight loss. The examiner stated that the Veteran had signs and symptoms of chronic IBS. However, there were no worrisome features. During an August 2010 Board hearing, the Veteran testified that Dr. B. had given him a probiotic to use called Align, but every medication he had used in the past had not worked. See August 2010 Board Hearing Transcript, page 15-17. The Veteran also described his IBS symptoms during the February 2016 Board hearing. He reported that his symptoms had been the same from the fall of 2006 to the present. See February 2016 Board Hearing Transcript (Tr.), page 7. He stated that his IBS symptoms were constant. See Tr., page 3. The Veteran's symptoms included gas, bloating, and abdominal cramps. See Tr., page 7. He reported needing to use the bathroom eight to nine times a day and always being concerned about his proximity to bathrooms. See Tr., page 6, 7. The Veteran could also experience flare ups once a week. See Tr., page 8. A flare up could result in a week of diarrhea followed by constipation. See Tr. page 8, 9. He reportedly alternated between taking medication for either diarrhea or constipation as one occurred after the other. See Tr., page 3. However, the Veteran found that these medications were ineffective. See Tr., page 4. In light of the evidence discussed above, the Board finds that a 30 percent rating should be awarded for the Veteran's IBS for the period from December 11, 2006 to May 21, 2013. As previously noted, a 30 percent rating is warranted for severe irritable colon syndrome with diarrhea or alternating diarrhea and constipation, with "more or less" constant abdominal distress. 38 U.S.C.A. § 4.114, Diagnostic Code 7319. The Veteran testified that since the fall of 2006, he has suffered from episodes of either diarrhea or constipation. The Board finds that this testimony is consistent with his report from the August 2007 VA examination of intermittent loose diarrheal stools followed by constipation. In addition, his February 2016 testimony and Dr. B.'s June 2010 letter support that the Veteran suffered from abdominal cramps on a near constant basis. The Veteran is competent to give evidence about his observable symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Furthermore, the Board finds the Veteran's assertions to be credible. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). Thus, resolving all reasonable doubt in favor of the Veteran, the Board finds that a 30 percent disability rating is warranted under Diagnostic Code 7399-7319 for the entire initial rating period on appeal. 38 C.F.R. § 4.3, 4.7, 4.114. As this is the maximum schedular rating available for IBS, the Board concludes that the Veteran is not entitled to any higher schedular rating for the IBS disability under Diagnostic Code 7319 at any relevant time during the appeal period. The Board has also considered whether a higher rating would be appropriate under another Diagnostic Code. However, there is no showing of ulcerative colitis to receive a rating under Diagnostic Code 7323. While both the August 2007 VA examiner and Dr. B. indicated that the Veteran could have colitis, this diagnosis was not confirmed in the evidence of record from this period. In addition, the Veteran's frequent attacks of diarrhea have not been shown to approximate severe ulcerative colitis with numerous attacks a year and malnutrition, the health only fair during remissions. Thus, a higher rating under Diagnostic Code 7323 is not warranted. The Board also finds that a higher disability rating under Diagnostic Code 7346 is not for application as there was no indication that the Veteran experienced a hernia during this period. Diagnostic Code 7332 provides for higher ratings only if there is evidence of complete loss of anal sphincter control or extensive bowel leakage and fairly frequent involuntary bowel movements; this is neither alleged nor shown in this instance. The Board notes Dr. B.'s June 2010 report of blood per the Veteran's rectum, but Dr. B. did not suggest that this issue involved loss of anal sphincter control or extensive bowel leakage. For these reasons, a higher rating under Diagnostic Code 7332 is not appropriate. In addition, the evidence did not reflect that the Veteran had adhesions of the peritoneum, an ulcer, or gastritis during this period. Although the Veteran was treated for H. pylori bacteria, neither Dr. C. nor Dr. B. stated that he had an ulcer. Therefore, the other Diagnostic Codes regarding abdominal conditions do not afford a basis for the assignment of an initial schedular rating higher than 30 percent. See 38 C.F.R. § 4.114, Diagnostic Codes 7301, 7304, 7305, 7306, 7307. Thus, the Board has considered rating the service-connected disability under other possibly applicable diagnostic codes found at 38 C.F.R. § 4.114 (containing the schedule for rating disorders of the digestive system), but finds none applicable that would grant the Veteran a higher disability rating. See Butts v. Brown, 5 Vet. App. 532, 538 (1993); see also Pernorio v. Derwinski, 2 Vet. App. 625, 629(1992). ORDER From December 11, 2006 to May 21, 2013, an initial disability rating of 30 percent for IBS is granted. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs