Citation Nr: 1751741 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 14-02 028 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an evaluation in excess of 30 percent for ulcerative colitis with a history of adenocarcinoma of the colon status post total proctocolectomy, chemotherapy, ileostomy, ileostomy takedown, and adjuvant therapy. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. Bodi, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1968 to May 1972, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In this decision, the Agency of Original Jurisdiction (AOJ) continued the 30 percent disability rating assigned for the ulcerative colitis. In December 2013, the AOJ granted a 100 percent disability rating, effective June 13, 2011, the date the medical evidence of record reflected a diagnosis of adenocarcinoma of the colon as a result of his already service-connected ulcerative colitis. The Veteran's ulcerative colitis was evaluated as 100 percent disabling effective from June 13, 2011 to May 6, 2013, and a 20 percent disability rating was thereafter assigned as of May 7, 2013. Following additional evidentiary development, in January 2014, the AOJ restored the pre-operative 30 percent disability rating for the Veteran's service-connected ulcerative colitis, effective May 7, 2013. In November 2015, the Board remanded the issue of ulcerative colitis for further development. The remand required the RO to take appropriate steps to request any updated treatment records and to afford the Veteran a new VA intestinal examination. In compliance with the remand directives, updated VA treatment records and an April 2016 VA intestinal examination opinion was obtained. There has been substantial compliance with the directives, and the matter is again before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDING OF FACT The Veteran's ulcerative colitis is manifested by moderate symptoms, including frequent exacerbations to include diarrhea and urge incontinence. CONCLUSION OF LAW The criteria for an evaluation in excess of 30 percent for ulcerative colitis with history of adenocarcinoma of the colon status-post total proctocolectomy, chemotherapy, ileostomy, ileostomy takedown and adjuvant therapy have not been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. 4.1, 4.114, 4.3, Diagnostic Code 7323 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran's claims. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Additionally, the Veteran has not 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). The Board finds the duties to notify and assist have been met, all due process concerns have been satisfied, and the appeal may be considered on the merits. II. Rating of Ulcerative Colitis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994) (citing 38 U.S.C. §§ 1110; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992)). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's ulcerative colitis is currently evaluated as 30 percent disabling. Under the schedule of ratings for the digestive system, a 30 percent rating is assigned for moderately severe ulcerative colitis; with frequent exacerbations. A higher 60 percent rating is assigned for severe symptoms, with numerous attacks a year and malnutrition, the health only fair during remissions. A 100 percent rating is assigned for pronounced ulcerative colitis, resulting in marked malnutrition, anemia, and general debility, or with serious complication as liver abscess. III. History The Veteran's service-connected ulcerative colitis with history of adenocarcinoma of the colon status-post total proctocolectomy, chemotherapy, ileostomy, ileostomy take down and adjuvant therapy, is currently evaluated as 30 percent disabling. VA received the Veteran's claim for an increased rating for ulcerative colitis in July 2011. The August 2011 VA examination shows that the Veteran reported flares every one to two years which involved some mild nausea, no vomiting, but with significant pain, bleeding and bloating from the rectal area, and with significant diarrhea of around 10 to 12 bouts per day when the flare was occurring. The Veteran reported these flares would last several days or longer and eventually would subside. He reported this was the case for approximately 40 years. However, the Veteran reported that in the last year and one-half he experienced chronic daily flares of around 10 to 12 bouts of diarrhea per day pain in the abdominal area, bloating in the abdominal area, and rectal bleeding associated with his diarrhea bouts. He reported these bouts would wake him at night and that he used cream and medications. The examiner noted that during his most recent workup and examination, it was found that he suffered from colon cancer; however the examiner did not specifically link his colon cancer to service-connected ulcerative colitis at that time. The Veteran reported that he expected to be unable to work following his surgery for colon cancer. Upon physical examination it was noted he was in no acute distress. He was alert and oriented. His abdomen was mildly distended with some diffuse tenderness to palpation in the night upper and left lower quadrants with active bowel sounds. There were no masses palpable. There was an unremarkable A CAT scan, conducted in June 2011, that revealed circumferential mucosal thickening and enhancement and fibrofatty change involving his colon from the rectum through the spier-flexure, suggesting colitis. The VA examiner found impressions of ulcerative colitis which was managed by mesalamine. After he was found to have adenocarcinoma, the Veteran underwent a total proctocolectomy with ileostomy in September 2011, followed by chemotherapy treatment sessions that were completed in May 2012. The Veteran was granted separate service connection and a 100 percent rating for residuals of adenocarcinoma of the colon including surgery and residual therapies, effective from June 13, 2011 to May 6, 2013. The Veteran was afforded a new VA gastrointestinal examination in December 2013, during which he provided his medical history and reported to experience moderate symptoms attributable to the resection of the large intestine, in the form of uncontrolled bowel movements and excess gas. He also reported to have extreme pain in his abdomen which caused him to wake up at night. In addition, the Veteran reported to have watery diarrhea, painful bloating and distension and some nausea as a result of his service-connected ulcerative colitis. The Veteran's weight was stable. When asked whether the Veteran's intestinal surgery residuals impacted his ability to work, the VA examiner responded that they did, and explained that the Veteran was unable to sit for a period of time, experienced difficulty with gas and bloating, had difficulty walking, and was at risk for bowel movement accidents. Outpatient treatment reports from VAMC Columbia generally show the Veteran had complaints of his disability not being controlled by his medication, Anascol. The Veteran reported symptoms of diarrhea, gas and some bleeding and the symptoms were sporadic. A treatment record from May 2013 found mild inflammation, a clinically normal finding, with no evidence of dysplasia. In January 2014, the RO granted separate service connection for peripheral neuropathy of the bilateral upper and bilateral lower extremities with ratings effective in July 2012 as residuals of chemotherapy for the colon cancer. In the May 2014, the Veteran's representative noted that his client's condition had worsened since his prior VA examinations, and requested another VA examination to determine the current severity of his gastrointestinal condition. In the October 2015 Appellant's Brief, the Veteran's representative, reported that the Veteran experienced chronic and daily flare-ups of his ulcerative colitis, with approximately 10-12 bouts of diarrhea a day, abdominal pain, bloating, and rectal bleeding. A September 2014 VA treatment record indicates that upon flexsigmoidoscopy examination, the Veteran was clinically normal. A treatment record from November 2015 specifically reads, "He states that his abdominal symptoms spontaneously resolved. He is no longer having colicky abdominal pain." A December 2015 flex sigmoidoscopy revealed impressions of mild colitis. At the April 2016 VA examination, the Veteran complained of fecal incontinence occurring about once a week. He stated that he gets the urge to use the bathroom and sometimes does not make it in time. He complained of constant diarrhea and states he has not had a solid stool since the surgery in 2011. He also complained of continued constant neuropathy symptoms in his hands and feet. He complained of constant pain and numbness/paresthesias. The Veteran stated that he is afraid to be far from a bathroom due to fecal incontinence. He complained of urge incontinence. There were no reports by the Veteran or observations by the examiner of weight loss, malnutrition, or an overall level of fair health. The VA examiner found moderate symptoms attributable to resection of large intestine, namely constant diarrhea. The VA examiner further stated that the Veteran does not have weight loss of interference with absorption and nutrition. The Veteran and his representative assert that 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 closely approximates the criteria required for that rating. IV. Analysis The Veteran is competent to report that he has diarrhea, gas and some bleeding. He is competent to report the nature, severity and frequency of these symptoms. The Board finds these reports credible as they are consistent and were accepted by clinicians and examiners. There are consistent impressions of such symptoms in the VA treatment records and VA examinations both prior to and after the colon surgery and period of 100 percent disability rating. The most recent April 2016 VA examination found the Veteran had moderate symptoms attributable to resection of large intestine, namely constant diarrhea. These were substantially the same findings as those from the December 2013 VA examination. In that VA examination, there were impressions of difficulty with gas and bloating, and risk for bowel movement accidents. At no time did any clinical or examination reports indicate weight loss, malnutrition, or an overall fair level of health aside from the frequent diarrhea and neuropathy, the latter contemplated in separate ratings. Additionally the Veteran was granted a total disability rating based on individual unemployability effective May 7, 2013, the day following the end of the 100 percent schedular rating for residuals of the colon cancer, so that he has been rated as totally disabled since the June 13, 2011 surgery. Here, the most probative evidence suggests that the Veteran's ulcerative colitis was manifest by moderate symptoms, including frequent exacerbations to include diarrhea and urge incontinence because the evidence of record does not show severe symptoms with numerous attacks a year and malnutrition, the health only fair during remissions. This most closely approximates the 30 percent rating based upon frequent exacerbations to include diarrhea and urge incontinence. The Board finds the VA examinations to be highly probative. A higher evaluation of 60 percent for ulcerative colitis is not warranted unless the evidence shows severe symptoms with numerous attacks a year and malnutrition, the health only fair during remissions. There is no probative evidence suggesting that the Veteran's disability has manifested to this higher degree. Consequently, a rating in excess of 30 percent for ulcerative colitis is not warranted. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In reaching this conclusion, the Board finds that the preponderance of the evidence is against this claim. As such, the benefit of the doubt rule is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an evaluation in excess of 30 percent for ulcerative colitis with history of adenocarcinoma of the colon status-post total proctocolectomy, chemotherapy, ileostomy, ileostomy takedown and adjuvant therapy is denied. ____________________________________________ J. W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs