Citation Nr: 1751745 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 10-00 194A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an initial rating in excess of 30 percent for irritable bowel syndrome (IBS) with ulcerative colitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. D. Hawkins, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from September 1985 through October 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for IBS with ulcerative colitis and assigned an initial evaluation of 10 percent effective May 5, 2008. In a March 2017 rating decision, the RO increased the evaluation to 30 percent, effective May 5, 2008. That rating decision also granted entitlement to a total rating based on individual unemployability (TDIU), effective May 5, 2008. FINDING OF FACT The Veteran's IBS with ulcerative colitis has not been manifested by numerous attacks a year and malnutrition, with health only fair during remissions or serious complications. CONCLUSION OF LAW The criteria for a disability rating in excess of 30 percent for IBS with ulcerative colitis are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.114, Diagnostic Codes (DC) 7319, 7323 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1 (2017). Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2017); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2017); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2017); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (2017). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Under DC 7319, a maximum 30 percent evaluation is assigned for severe irritable colon syndrome, with diarrhea or alternating and constipation, with more or less constant abdominal distress. 38 C.F.R. § 4.114. Under DC 7323, a 30 percent evaluation requires moderately severe ulcerative colitis with frequent exacerbations. A 60 percent evaluation is warranted for severe ulcerative colitis with numerous attacks a year and malnutrition, with health only fair during remissions. DC 7323 (2017). A 100 percent evaluation is warranted for pronounced ulcerative colitis resulting in marked malnutrition, anemia, and general debility or with serious complication as liver abscess. Id. In April 2008, the Veteran underwent follow-up for ulcerative colitis at a VA Medical Center. At that time, he endorsed having four to five bowel movements a day with a little rectal bleeding, and in a September 2008 treatment note, the Veteran stated his IBS/ulcerative colitis prevents him from exercising. On VA examination in October 2008, the examiner noted the Veteran had a diagnosis of ulcerative colitis since 1997. The Veteran reported still having 4 to 8 loose stools a day and occasional blood in his stools 3 to 4 times a week. The examiner noted the Veteran's condition was stable at present on medication. The Veteran noted he had severe colicky, crampy pain in the right lower quadrant that was constant or near constant right before bowel movements. When colitis was episodic, the pain could last 7 to 12 hours. The number of attacks per year was noted as 1 to 2. On physical examination the Veteran's height was 72 inches and his weight was 230 pounds. There has been no weight change, and his overall general health was noted to be good, with no significant weight loss, no malnutrition, and no signs of anemia. There was mild epigastric pain and left lower quadrant pain with palpation. There was no rebound. The examiner stated the ulcerative colitis resulted in mild functional impairment in shopping, exercise, recreation and traveling, with moderate impairment in sports. The Veteran reported that any physical activity causes him to have cramping and diarrhea from the ulcerative colitis. A September 2011 VA treatment record noted the gastroenterologist questioning whether the Veteran had ulcerative colitis in the first place. The physician noted the Veteran's chart and laboratory results were reviewed. She stated that ulcerative colitis is a diffuse disease that always starts from rectum and dentate line, never in the middle of the colon. The Veteran underwent a colonoscopy with biopsy in February 2013. Biopsy of the right colon showed an essentially normal colon consistent with colitis in remission. Biopsy of the right colon showed nonspecific findings consistent with colitis in remission. In June 2013, the Veteran underwent another VA examination. Based on a review of the claims file and an in-person examination of the Veteran, the examiner noted only mild non-specific findings consistent with colitis in remission, with no active colitis identified. During the examination, the Veteran endorsed diarrhea between three to five times a day, and noted spicy foods like pizza, exacerbate his symptoms. The Veteran noted experiencing occasional episodes of bowel disturbance with abdominal distress. The Veteran denied any weight loss, malnutrition, complications or other general health effects due to his condition. In April 2015 hearing testimony, the Veteran again endorsed "constant" diarrhea, void of a hard stool, a symptom he has experienced for several years. However, the Veteran stated his ulcerative colitis was pretty well in check due to his prescribed Sulfasalazine. Following the hearing, the Veteran underwent another VA examination in May 2016 to assess his condition. The examiner included relevant treatment notes in the examination report. On examination, the Veteran continued to complain of loose bowel movements, up to five times daily, soft stool, no blood, occasional mucous, and gas with pains, but he noted a good appetite with no weight loss. The examiner noted there was no malnutrition, complications or other general health effects. Laboratory tests did not reveal anemia. The Veteran reported that due to frequent stooling after meals he had to avoid going to restaurants, movies and shopping, which presents difficulties in prolonged sitting and doing physical activities. The examiner noted that the Veteran's medical history neither suggests nor offers concrete or firm evidence of ulcerative colitis, but in the alternative the ulcerative colitis is very mild and causes no disabilities. January 2017 progress notes reveal the ulcerative colitis is stable and note the Veteran is eating well. Based on a thorough review of the evidence, the Board finds that a rating higher than 30 percent is not warranted. The 30 percent rating presently assigned contemplates severe irritable colon syndrome, with diarrhea or alternating and constipation, with more or less constant abdominal distress, which is consistent with the Veteran's reported symptomatology. To warrant a higher rating based on ulcerative colitis, there needs to be numerous attacks of ulcerative colitis a year and malnutrition, with only fair health during remission. Here, the evidence suggests that during the early period of the claim, the Veteran had only 1 to 2 attacks of colitis a year, and presently the ulcerative colitis is shown to be in remission, or at worst mild. There has been no finding of malnutrition, anemia or other serious complication during the course of the appeal. Accordingly, the Board finds that the symptomatology reported by the Veteran and shown on examinations is consistent with the 30 percent rating presently assigned, and that a rating in excess of 30 percent has not been more nearly approximated. There are no additional expressly or reasonably raised issues presented on the record. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017). In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2014); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER An initial rating in excess of 30 percent for IBS with ulcerative colitis is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs