Citation Nr: 1753691 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 11-28 975 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to initial rating in excess of 30 percent for dysentery with residual of rectal bleeding and abdominal distress (gastrointestinal disorder) rated as 30 percent disabling. 2. Entitlement to initial rating in excess of 10 percent from February 8, 2010, and 20 percent from July 13, 2011, for degenerative disc disease lumbar spine (low back disability). 3. Entitlement to initial rating in excess of 10 percent from February 8, 2010, for right knee degenerative joint disease status post arthroscopic surgery (right knee disorder). 3. Entitlement to a total rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran served on active duty with the United States Navy from August 1996 to August 1999. This matter comes before the Board of Veterans' Appeals (Board) from July 2010 and March 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In February 2017 the Board, among other things, remanded the above claims for additional development. Additional VA treatment records have been added to the claims file since the July 2017 supplemental statement of the case. Nonetheless, the Board finds that it can adjudicate the gastrointestinal disorder claim without seeking a waiver or remanding the claim for agency of original jurisdiction review because they do not relate to his gastrointestinal disability. The claims for higher ratings for a low back disability and a right knee disorder are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran has multiple gastrointestinal disorders and the preponderance of the evidence shows that his service-connected gastrointestinal disorder, acting alone, is not manifested by symptomatology that equates to at least severe symptoms with numerous attacks per year and malnutrition as well as with only fair health during remissions, at any time during the pendency of the appeal. 2. The Veteran's service-connected disabilities preclude substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for the gastrointestinal disorder have not been met at any time during the pendency of the appeal. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 2014); 38 C.F.R. §§ 4.7, 4.114 including Diagnostic Code 7323 (2017). 2. The criteria for a TDIU rating have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran asserts that his gastrointestinal disorder meets the criteria for a higher rating at all times during the pendency of the appeal. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). He also claims, in substance, that his service-connected disabilities prevent substantial employment. The Claim Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2017). Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27 (2017). When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation 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. 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998). The Veteran's gastrointestinal disorder was rated as 30 percent disabling under first 38 C.F.R. § 4.114, Diagnostic Code 7399-7222 (bacillary dysentery) and more recent is rated as 30 percent disabling under 38 C.F.R. § 4.114, Diagnostic Code 7323 (ulcerative colitis). Diagnostic Code 7222 provides that bacillary dysentery is rated as ulcerative colitis under Diagnostic Code 7323. Diagnostic Code 7323 provides a 30 percent rating for moderately severe symptoms of ulcerative colitis with frequent exacerbations. A 60 percent rating is warranted for severe symptoms, with numerous attacks per year and malnutrition, with only fair health during remissions. A 100 percent rating is warranted for pronounced symptoms, resulting in marked malnutrition, anemia, and general debility, or serious complications, such as liver abscesses. At the May 2012 VA examination it was reported that the Veteran had a history of ulcerative colitis since 2006. It was next noted that his symptomatology was exacerbated by certain foods (i.e., especially pork or bacon and spicy foods) and his continuous medication (i.e., omeprazole) helped both his heartburn and lower gastrointestinal symptoms. In the past year, he has had hemocult positive stools, leading to EGD and colonoscopy in September 2011 which was negative. On examination, the Veteran's only symptoms were frequent episodes of abdominal discomfort and pain with episodes of blood in stool. It was next reported that he did not have a problem with rectal pain with defecation, diarrhea, alternating diarrhea and constipation, anemia, nausea, vomiting, weight loss, and malnutrition as well as complications and other general health effects. The Veteran next reported that he had lost seven days of work due to abdominal pain. Thereafter, the examiner opined as follows: Diagnosis of GERD is made 1-24-11. No diagnosis of IBS found. There is not enough evidence to diagnose lBS (rectal bleeding not consistent with IBS) or IBD (negative colonoscopies and no response to Asacol). These symptoms are not consistent with a single diagnosis of GERD (especially with negative EGD). C-file: Single episode of viral gastroenteritis found in STRs 5-3-97. Thereafter, at the March 2013 VA examination it was noted that since the last examination the Veteran continued to have bowel symptoms that have somewhat worsened. The Veteran reported that he treated his symptoms with Pepto-Bismol every day. It was next reported that the Veteran had a problem with lower abdominal cramps with stools, frequent gaseous distention, and alternating diarrhea and constipation (diarrhea for three day in a row followed by one day of diarrhea), and frequent episodes of bowel disturbance with abdominal distress. However, he did not have symptoms attributable to distomiasis. It was also reported that he did not have mild gastrointestinal disturbance, anemia, nausea, vomiting, weight loss, serious, complications, and other general health effects. A CBC in January 2013 showed Hemoglobin: 17.0; Hematocrit: 49.5; White blood cell count: 9.7; and Platelets: 264. The Veteran reported that he lost 45 days of work due to gastrointestinal problems and migraine headaches. Lastly, at the April 2017 VA examination it was reported that the Veteran's medical history included resolved dysentery with rectal bleeding and abdominal distress and irritable bowel syndrome. As to his dysentery with rectal bleeding and abdominal distress history, the examiner reported that his date of onset was 1998 and he has had recurrent abdominal pain and rectal bleeding since that time. A February 2017 colonoscopy was normal. The Veteran continues on medication (i.e., omeprazole) which helped the acid reflux but not the abdominal distress. The Veteran's symptoms were limited to occasional diarrhea, abdominal pain, and frequent episodes of bowel disturbance with abdominal distress. It was next reported that the Veteran's symptomatology did not include alternating diarrhea and constipation, abdominal distention, anemia, nausea, vomiting, weight loss, and malnutrition as well as complications and other general health effects. A CBC in April 2017 showed Hemoglobin: 17.7; Hematocrit: 54.4; White blood cell count: 8.4; and Platelets: 202. Thereafter, as to the service connected dysentery with rectal bleeding and abdominal distress, the examiner opined ". . . the condition has resolved. Current symptoms are due to IBS (irritable bowel syndrome). IBS is a separate and unrelated diagnosis." VA treatment records also periodically document the Veteran's complaints and treatment for gastrointestinal symptoms. However, the Board notes that nothing in these treatment records shows the Veteran's service connected gastrointestinal disorder to be worse than what was reported at the above VA examinations. Initially, the Board notes that the April 2017 VA examiner opined that that the Veteran suffers from a gastrointestinal disorder (i.e., irritable bowel syndrome) other than his service-connected gastrointestinal disorder. Tellingly, the April 2017 VA examiner distinguished between the symptomatology caused by his service-connected gastrointestinal disorder (i.e., none because it had resolved) and non service-connected irritable bowel syndrome. Therefore, the Board in adjudicating the severity of the Veteran's service-connected gastrointestinal disorder must also distinguish the symptomatology caused by his service-connected gastrointestinal disorder and non service-connected irritable bowel syndrome. But see Mittleider v. West, 11 Vet. App. 181, 182 (1998) ("when it is not possible to separate the effects of the [service-connected condition and the non-service-connected condition], VA regulations at 38 C.F.R. § 3.102, which require that reasonable doubt on any issue be resolved in the appellant's favor, clearly dictate that such signs and symptoms be attributed to the service-connected condition. 61 Fed. Reg. 52698 (Oct. 8, 1996).)" Next, the Board finds the April 2017 VA examiner's opinion that none of the gastrointestinal symptomatology seen in the record (i.e., abdominal discomfort, blood in stool, diarrhea, etc. . .) the most probative evidence of record because it is not contradicted by any other medical evidence of record. See Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when decision makers give an adequate statement of reasons and bases). In reaching this conclusion, the Board has not overlooked any lay claims to the contrary from the Veteran and others nor has it overlooked the fact that they are competent to report on what they experience through their five senses. See Davidson. However, the Board nonetheless finds the VA examiner's opinion more probative as to the question of which gastrointestinal symptoms are due to the service-connected gastrointestinal disorder as opposed to his non service-connected irritable bowel syndrome because the examiner has greater medical training. See Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). Accordingly, the Board finds that the preponderance of the evidence of record shows that the Veteran's service-connected gastrointestinal disorder is not manifested by at least severe symptoms, with numerous attacks per year and malnutrition, with only fair health during remissions, because none of the gastrointestinal symptomatology seen in the record is attributable to his service-connected disability. See 38 C.F.R. § 4.114, Diagnostic Code 7323. Moreover, even if the Board did associate all the gastrointestinal symptoms to the Veteran's service-connected gastrointestinal he would still not meet the criteria for at least a higher, 60 percent, rating. In regard, the Board acknowledges the fact that his gastrointestinal symptoms cause abdominal discomfort, blood in his stool, and diarrhea as well as a need to continuously take medication. Additionally, the 2013 VA examiner reported her had a problem with alternating diarrhea and constipation, abdominal cramps with stools, and frequent gaseous distention. However, his VA examiners were uniform in finding that he was not malnourished. The VA examiners were also uniform in finding that he did not have a problem with anemia, nausea, vomiting, and other general health effects. Moreover, the Veteran does not claim and the record does not show that he has numerous attacks per year or has only fair health during remission. Likewise, the Board finds that even though many of the above symptoms are observable by a lay person because they come to them via their own senses (see Davidson), the Board finds the VA examiners opinions that he does not have these symptoms more probative because the examiners have greater medical training. See Black. Accordingly, the Board finds that the preponderance of the evidence of record shows that even when considering all gastrointestinal symptoms documented in the record the Veteran's service-connected gastrointestinal disorder is still not manifested by at least severe symptoms, with numerous attacks per year and malnutrition, with only fair health during remissions. See 38 C.F.R. § 4.114, Diagnostic Code 7323. Thus, the Board finds that the criteria for at least the next higher rating for the Veteran's gastrointestinal disorder have not been met. 38 C.F.R. § 4.114, Diagnostic Code 7323. The Board finds that this is true at all times during the pendency of the appeal and thus staged ratings are not warranted. See Fenderson. Lastly, given the nature of the Veteran's service-connected gastrointestinal disorder as well as its manifestations, it is not ratable under one of the other criteria found at 38 C.F.R. § 4.114 for rating gastrointestinal disorders. See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board's choice of diagnostic code should be upheld so long as it is supported by explanation and evidence). The TDIU Claim Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. In calculating if the Veteran met the above schedular criteria VA combines the Veteran's service connected orthopedic disorders. The existence or degree of non-service connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran's service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). The central inquiry is, "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The sole fact that the Veteran is unemployed or has difficulty obtaining employment is not enough. The assignment of a rating evaluation is itself recognition of industrial impairment. A TDIU may be assigned where the schedular rating is less than total if a veteran is unable to secure or follow a substantially gainful occupation as a result of service- connected disabilities. 38 C.F.R. § 4.16(a). Generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Further, marginal employment, defined as an amount of earned annual income that does not exceed the poverty threshold determined by the United States Department of Commerce, Bureau of the Census, shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a); see also Faust v. West, 13 Vet. App. 342, 356 (2000). The Veteran's service-connected disabilities meet the schedular criteria set forth in 38 C.F.R. § 4.16(a) at all times during the pendency of the appeal. Thus, the question for the Board to consider is when, if ever, his service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). On his July 2012 VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, that he last worked full-time in August 2010 and he became too disabled to work and June 2011. As to his employment history, he notified VA that from February 2006 to August 2010 as a banker and August 2010 to "present" as a process server. The most he had ever earned in a year was $40,000 in 2009 and his income for the past 12-months before he stopped working was $12,000. He also reported that he left his last job because of his service connected disabilities. As to his education and training, the Veteran reported that he had one year of college. Significantly, the Veteran's work history as a banker that requires being able to sit for a long period of time and concentrate and as a process sever to be able to be driving around finding the people he needs to serve. However, the Board finds that a review of the record on appeal shows that his service-connected low back disability adversely and bilateral lower extremity radiculopathy impacts his ability to sit for long periods of time. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (holding that the determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the RO). Moreover, the Board finds that the record shows that symptoms and manifestations of the Veteran's migraine headaches clearly impair his ability to interact with others in the work place and to stay focused enough to solve complex banking problems. Id. Likewise, the Board finds that the record shows that symptoms and manifestations of the Veteran's gastrointestinal disorder impair his ability to driving around, away from rest rooms, serving people. Given the above the Board finds that, while the Veteran could probably obtain some type of employment, that the most probative evidence of record shows that his service-connected disabilities would prevent him from securing or following a "substantially gainful" occupation given his work history and the collective adverse impact his service-connected low back disability and bilateral lower extremity radiculopathy would have on performing jobs that require prolonged sitting and the adverse impact his service-connected migraine headaches and gastrointestinal disorder would have on his ability to effectively interact with co-workers and others in a sedentary work setting despite his one year of college and banking work history. Lastly, the Board finds that the collective adverse impact of the Veteran's other service-connected disabilities (i.e., left ear hearing loss and tinnitus) when combined with his low back disability, bilateral lower extremity radiculopathy, migraine headaches, and gastrointestinal disorder causes with working, and his lack of experience would also prevent him from securing or following a "substantially gainful" occupation in work the require manual labor. Therefore, the Board finds that the most probative evidence of record shows that the Veteran's service-connected disabilities render his incapable of substantial gainful employment. The Board therefore finds that the criteria for a TDIU have been met. ORDER A rating in excess of 30 percent for a gastrointestinal disorder is denied at all times during the pendency of the appeal. Subject to the law and regulations governing the payment of monetary benefits, TDIU benefits are granted all times during the pendency of the appeal. REMAND As to the claims for higher ratings for a low back and right knee disabilities, the Board finds that another remand is necessary because it is unclear from a review of the April 2017 VA examination report whether the examination included range of motion testing in both active and passive motion, weight-bearing, and non weight-bearing situations along with a comparison of these motions with the non service connected left knee. See Sharp v. Shulkin, 29 Vet. App. 26 (2017) (holding that VA must consider the range of motion of a joint in both active and passive motion, weight-bearing, and non weight-bearing situations when rating a disability based on lost motion). As such, a new VA examination is necessary to conduct the appropriate range of motion testing. 38 U.S.C.A. § 5103A(d) (West 2014). Accordingly, these issues are REMANDED to the AOJ for the following actions: 1. Associate with the claims file the Veteran's post-September 2017 treatment records from the Grand Junction VA Medical Center. 2. After obtaining authorizations from the Veteran, associate with the claims file any outstanding private treatment records. 3. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge of the problems caused by his low back and right knee disorders. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 4. Schedule the Veteran for appropriate VA examinations to determine the nature and severity of his low back and right knee disorders. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. A. Range of Motion Studies: The examiner should identify all low back and right knee pathology found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies. Full range of motion testing must be performed where possible. The joints involved should be tested in both active and passive motion, in weight-bearing and non weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). B. Other Findings: The examiner should also discuss the nature and severity of any right or left-sided radiculopathy or neuropathy found to be present. Further, the examiner should state whether the low back disability is productive of any incapacitating episodes, which are defined as periods of acute signs and symptoms that require bed rest prescribed by a physician or treatment by a physician, and if so, the frequency and duration. The examiner should also state whether the low back disability is productive of any bowel or bladder problems. Lastly, the examiner should state whether the right knee disorder is productive of recurrent subluxation or lateral instability since February 2010. 5. Then adjudicate the appeal. If any benefit sought on appeal is not granted in full, furnish the Veteran a supplemental statement of the case (SSOC). The Veteran should be given an appropriate opportunity for response before returning the appeal to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs