Citation Nr: 1737873	
Decision Date: 09/08/17    Archive Date: 09/19/17

DOCKET NO.  14-01 533	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUES

1. Entitlement to an increased rating in excess of 30 percent disabling for irritable bowel syndrome (IBS).

2. Entitlement to an increased rating in excess of 20 percent disabling for left brachial plexus neuralgia.

3. Whether the reduction of the rating for postoperative carotid subclavian artery bypass due to congenital malformation from 60 percent to 0 percent, effective July 1, 2011, was proper.

4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).



REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Appellant


ATTORNEY FOR THE BOARD

J. Sandler, Associate Counsel


INTRODUCTION

The Veteran served on active duty from November 1951 to April 1972. He died in February 2014; his surviving spouse has been properly substituted as the Appellant in this case.

These matters are before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Louisville, Kentucky and Jackson, Mississippi Department of Veterans Affairs (VA) Regional Offices (RO) in March 2010 (denying increased ratings for IBS and left brachial plexus neuralgia, and entitlement to TDIU) and March 2011 (reducing the rating for postoperative carotid subclavian artery bypass). In June 2017, the Appellant testified at a videoconference Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is in the record.

The Board notes that the appeals for increased ratings for IBS and left brachial plexus neuralgia and entitlement to TDIU are from the March 2010 rating decision, instead of the March 2011 rating decision, because the Veteran submitted new evidence in August 2010, specifically an opinion by the Veteran's private physician, Dr. C. Bash, M.D.

As discussed during the June 2017 hearing, the Veteran's claim of service connection for diabetes is not currently before the Board. The Veteran's claim was last denied in an August 2009 rating decision that was never appealed. Accordingly, the Board does not have jurisdiction over that claim.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

1. The Veteran's IBS was severe and manifested in diarrhea, or alternating diarrhea and constipation, with abdominal distress.

2. Throughout the appeal period, the Veteran's left brachial plexus neuralgia was manifested with moderate severity.

3. The reduction in the rating for the Veteran's postoperative carotid subclavian artery bypass due to congenital malformation from 60 to 0 percent, effective July 1, 2011, was based on November 2009 and February 2011 VA examinations that did not show any improvement in the disability or in the Veteran's ability to function under the ordinary conditions of work and life.

4. From September 22, 2009, the Veteran's service-connected disabilities, specifically IBS, rendered him unable to obtain or retain substantially gainful employment.

CONCLUSIONS OF LAW

1. A rating in excess of 30 percent for IBS is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.7, 4.114, Diagnostic Code (DC) 7319 (2016).

2. A rating in excess of 20 percent for left brachial plexus neuralgia is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.7, 4.124a, Diagnostic Code 8716 (2016). 

3. The reduction of the rating for postoperative carotid subclavian artery bypass due to congenital malformation from 60 to 0 percent, effective July 1, 2011, was not proper, and restoration of a 60 percent rating is warranted. 38 U.S.C.A. §§ 1155, 5107, 5112 (West 2014); 38 C.F.R. §§ 3.105(e), 3.344, 4.104, Code 7110 (2016).

4. The criteria for entitlement to TDIU have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.1, 4.3, 4.16 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist 

The regulations governing reductions of evaluations for compensation contain their own notification and due process requirements (which are discussed in greater detail below) and, accordingly, VA's duties to notify and assist do not apply in regard to the Veteran's appeal of his reduction rating. 38 C.F.R. § 3.105(e), (i). 

Neither the Appellant nor her representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

II. Increased Ratings

a. Legal Criteria

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7.

When there is an approximate balance of positive and negative evidence, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102, 4.3. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

b. IBS

The RO inferred a claim for an increased rating for the Veteran's IBS when he filed for TDIU in September 2009. In June 2009, the Veteran's private physician, Dr. L. Leatherwood, M.D., opined that the Veteran had severe IBS that required instant access to a bathroom due to severe fecal urgency, which often led to soiling himself. His symptoms included abdominal pain, gas, and diarrhea. Treatment had not altered his severe symptoms.

During a November 2009 VA examination, the Veteran reported that he had no nausea or vomiting. He had constipation for two days a week with no bowel movement, but five days a week he would have four loose stools a day. He reported a pain level of eight out of ten and abdominal cramps that lasted about five minutes. He did not report hospitalizations or surgery on his abdomen. The examiner diagnosed IBS. 

In July 2010, the Veteran's private physician, Dr. Bash, noted that the Veteran uses diapers to manage his bowel accidents and that the Veteran had about 15 seconds notice prior to a bowel movement. 

In his June 2011 notice of disagreement, the Veteran reported he had diarrhea about five days a week, which required extremely quick action when it struck. He only had a few seconds to get to the bathroom or he would spoil his clothing and shoes. He reported that being in a sedentary position when the diarrhea struck did not help or make it faster for him to get to a restroom. He reported his condition had gotten worse over the years, and the only reason he could go anywhere was because he had a portable toilet in his van.

In June 2017, the Appellant testified that the Veteran had to wear diapers and had a toilet in his van because he needed it for instantaneous access. She stated the frequency of changing the Veteran's diapers was dependent on the day because he had worse days than others. The Veteran would watch what he ate because there were "certain things that were bad for it."

The Veteran is currently rated under Code 7319, which provides that a (maximum) 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 C.F.R. § 4.114, Code 7319. Because this is the maximum schedular rating for IBS pursuant Code 7319, a higher rating cannot be assigned under that Code. 

The Board has considered whether the Veteran would have been entitled to a higher rating under a different Code. A higher rating under Code 7323 for ulcerative colitis is not warranted because the treatment records do not reveal severe colitis with numerous attacks a year and malnutrition, with health only fair during remissions, or pronounced colitis, resulting in marked malnutrition, anemia, and general debility, or with serious complications such as liver abscess. While the Veteran's IBS symptoms (diarrhea, constipation and abdominal distress) are contemplated by Code 7319 and considered severe, his symptoms did not include overall effects on his general health such that they warrant a severe or pronounced rating under Code 7323. Accordingly, the Veteran's IBS symptoms are properly addressed under Code 7319, and-although the Board acknowledges the severity of the Veteran's disability and its extremely limiting nature-the claim for an increased rating in excess of 30 percent must be denied.

c. Left Brachial Plexus Neuralgia

During a November 2009 VA examination, the Veteran reported that he had a chronic, dull pain that flares up as a sharp pain three times a day and lasts about ten to 15 minutes. His pain was from his left shoulder down his entire arm and hand. He reported intermittent tingling and numbness without burning from his wrist to his left hand, occurring three times a day for about 20 minutes. His brachial plexus flare ups, neuralgia, and paresthesias were caused by applying pressure to the elbow and lifting over five to ten pounds. It also could flare up from using a computer. Sometimes he would "wake up with it." The examiner diagnosed left brachial plexus neuralgia secondary to left carotid subclavian artery bypass.

In a July 2010 private treatment record, the Veteran reported pain and weakness in his arm and hand. He had decreased pinprick sensation, joint stiffness, and swelling. 

During a February 2011 VA examination, the Veteran reported pain in the left shoulder laterally down the left arm and also into the left hand, but he mainly had pain in the shoulder and upper arm area. He had constant pain with an intensity of seven out of ten. He would get flare ups once daily, with an intensity of eight out of ten. He also felt weak in the left hand, and sometimes he would get tingling and numbness. The Veteran was right-handed. Upon examination he had decreased pinprick of the left upper extremity, but it was more "in stocking distribution." The examiner opined that the Veteran had mild to moderate functional limitations with physical activity.

During a June 2012 VA examination, the Veteran reported tingling, numbness, and loss of strength without burning in his left arm. The examiner opined that the severity of the Veteran's symptoms was moderate, but then diagnosed mild incomplete paralysis in his ulnar nerve.

In June 2017, the Appellant testified that the Veteran had no strength in his left arm; although he could use his arm to some degree, he could not pick up heavy items. He needed help buttoning his shirt, because his hand would go numb. His arm was "practically useless[.]" 

The Veteran is currently rated under Code 8716, for neuralgia of the ulnar nerve. See 38 C.F.R. § 4.124a. Neuralgia, cranial or peripheral, is characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, with a maximum rating equal to moderate incomplete paralysis. 38 C.F.R. § 4.124. 

Code 8716 provides that a 20 percent disability rating is awarded for moderate incomplete paralysis of the minor extremity; a 30 percent disability rating is awarded for severe incomplete paralysis of the minor extremity; and a (maximum) 50 percent disability rating is awarded for complete paralysis of the minor extremity (with "griffin claw" deformity due to flexor contraction of the ring and little fingers, atrophy very marked in dorsal interspace and thenar and hypothenar eminences; loss of extension of ring and little fingers, where the Veteran cannot spread the fingers or reverse, or cannot adduct the thumb; flexion of wrist is weakened).

The term "incomplete paralysis" means a degree of lost or impaired function that is substantially less than the type picture for "complete paralysis" of each nerve (whether due to varied level of the nerve lesion or to partial regeneration).

The words "moderate" and "severe" as used in the various 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. 38 C.F.R. § 4.6. 

Because 38 C.F.R. § 124 limits the maximum rating for neuralgia at moderate severity, the Veteran is currently receiving the maximum rating for Code 8716. Accordingly, a higher rating under that code may not be assigned.

The Board has considered whether a higher rating may be assigned under a different Code, however the same rating scale applies to Codes 8516 (incomplete paralysis of the ulnar nerve) and 8616 (neuritis of the ulnar nerve). Neuritis, cranial or peripheral, is characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, and is to have a maximum rating equal to severe, incomplete paralysis. 38 C.F.R. § 4.123. 

Even if the Board were to use Code 8516 or 8616, the Veteran's disability picture still more nearly approximates the criteria for moderate severity, instead of severe. The Veteran's and Appellant's statements are competent and credible. However, after review of their reports and the medical opinions on record, the Veteran's left arm condition does not appear to be severe enough to warrant a higher rating. In particular, though the Veteran reported pain, tingling, and numbness, the Board attaches more weight to the Veteran's reports that his flare ups lasted for a short duration of time. Although the Veteran stated that he sometimes would wake up at night, he does not appear to have woken up because of the pain in his left arm. Additionally, the Board attaches probative weight to the medical opinions expressing mild or moderate severity, which take into consideration the Veteran's reports of constant pain. Accordingly, the Veteran is properly rated under Code 8716 and a rating in excess of 20 percent is not warranted.

III. Reduction

a. Legal Criteria

Where a reduction in an evaluation of a service-connected disability is considered warranted, and the lower evaluation would result in a reduction or termination of compensation payments currently being made, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons, and the AOJ must notify the Veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level. The Veteran must also be informed that he may request a predetermination hearing, provided that the request is received by VA within 30 days from the date of the notice. If no additional evidence is received within the 60-day period and no hearing is requested, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the Veteran expires. 38 C.F.R. § 3.105(e).

If the above procedures are followed, the analysis proceeds to whether the reduction was factually warranted. General regulatory requirements for disability ratings must be met in making a determination regarding whether improvement is shown. Brown v. Brown, 5 Vet. App. 413 (1993). The entire recorded history of the disability must be reviewed.  38 C.F.R. §§ 4.1, 4.2. The evidence must reflect an actual change in the disability and not merely a difference in the thoroughness of the examination or in the use of descriptive terms. 38 C.F.R. § 4.13. It must further show that the disability has improved in such a manner that the Veteran's ability to function under the ordinary conditions of life and work has been enhanced. 38 C.F.R. §§ 4.2, 4.10; Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

b. Factual Background and Analysis

In a March 2010 rating decision, the Veteran was notified of VA's intent to reduce his rating for postoperative carotid subclavian artery bypass from 60 percent to 0 percent. In November 2010, he was provided notice of his right to submit additional evidence and request a hearing; a hearing was not requested. The Veteran's rating was reduced to 0 percent in March 2011, effective July 1, 2011. Accordingly, VA met its due process requirements.

The Veteran's rating was originally increased to 60 percent (from 0 percent) under Code 7110, which requires that the Veteran was precluded from exertion, based on an October 2008 VA examination during which the Veteran reported he was unable to exert himself. He stated that he did desk work and filed papers; he could go fishing without much difficulty and could walk two miles an hour. 

In March 2011, the RO based its decision to reduce the Veteran's rating back to 0 percent on November 2009 and February 2011 VA examinations; the RO determined that the Veteran should have never been compensated for his symptoms (i.e., his inability to exert himself) because they were due to non-service connected disabilities. During the November 2009 examination, the Veteran reported that the only complication from his surgery was loss of strength of his left arm with neuralgia. The examiner did not opine as to whether he agreed with the Veteran's report. The February 2011 VA examiner opined that the only residual from the Veteran's surgery was his left arm neuralgia. Neither examiner commented on the Veteran's ability to exert himself, and whether such ability had improved.

The Board notes that, while it is possible that there may have been an error in the October 2008 rating decision increasing the Veteran's claim to 60 percent, such error is not the proper basis to reduce a rating pursuant to 38 C.F.R. § 3.105(e), for which improvement must be shown. Here, no improvement in the Veteran's symptoms for which he was originally rated was shown in either the November 2009 and February 2011 VA examinations.

Accordingly, the Board finds that the reduction in the rating of the Veteran's postoperative carotid subclavian artery bypass from 60 to 0 percent, effective July 1, 2011, was not factually warranted, because the November 2009 and February 2011 VA examinations on which the reductions were based did not show any improvement in the disability or in the Veteran's ability to function under the ordinary conditions of work and life.  Hence, the reduction was void ab initio and the 60% rating must be restored, effective July 1, 2011.

IV. TDIU

Legal Criteria, Factual Background, and Analysis

TDIU will be awarded when a veteran meets certain percentage standards and is unable to secure or retain a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a) (2016). 

The Veteran met the schedular criteria since September 22, 2009 (the date he filed for entitlement to TDIU and the date the RO inferred the currently appealed increased rating claims). He and his spouse provided competent and credible reports that the symptoms associated with his service-connected IBS, specifically his inability to hold his stool, prevented him from working. 

The Board notes that the Veteran retired in 1999, and at that time he owned his own company. Although VA examination reports of record suggest that he was able to perform sedentary employment, those same reports do not take into consideration the Veteran's daily stool leakage and the virtually non-existent time window the Veteran had to get to a restroom before he would soil his clothing. Additionally, two of the Veteran's private physicians, Dr. Leatherwood and Dr. Bash, found that the Veteran was unable to maintain employment due to his unpredictable need to immediately use the restroom several times a day. Accordingly, the Board assigns more weight to the Veteran's and Appellant's statements, and the opinions of Dr. Leatherwood and Dr. Bash. 

Consequently, the Board finds that the Veteran was unable to obtain and retain substantially gainful employment from September 22, 2009.


ORDER

A rating in excess of 30 percent for irritable bowel syndrome is denied.

A rating in excess of 20 percent for left brachial plexus neuralgia is denied.

The appeal challenging the propriety of the bypass rating reduction from 60 to 0 percent is granted.  The 60 percent rating is restored, effective July 1, 2011.

Entitlement to TDIU is granted, effective September 22, 2009.



____________________________________________
VICTORIA MOSHIASHWILI 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs