Citation Nr: 1753745 Decision Date: 11/24/17 Archive Date: 12/01/17 DOCKET NO. 13-35 458 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a compensable evaluation for chronic diarrhea. REPRESENTATION Appellant represented by: Robin Hood, Attorney WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD J. Ragheb, Counsel INTRODUCTION The Veteran served on active duty from April 1967 to August 1971. This appeal is before the Board of Veterans' Appeals (Board) from a July 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran testified before the undersigned in a November 2016 videoconference Board hearing, the transcript of which is of record. FINDINGS OF FACT 1. For the entire appeal period, the Veteran's chronic diarrhea has been productive of moderate frequent episodes of bowel disturbance with abdominal stress, but not more or less constant abdominal distress. 2. For the entire appeal period, the Veteran's chronic diarrhea has not been productive of occasional involuntary bowel movements necessitating wearing of pad. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for a 10 percent evaluation, and not in excess thereof, for chronic diarrhea are met for the entire appeal period. 38 U.S.C.A. §§ 1155 (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.114 Diagnostic Codes (DCs) 7319, 7332 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In the present case, required notice was provided by letter dated February 2010. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). As to VA's duty to assist, all necessary development has been accomplished. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service and VA medical records have been obtained, as have relevant private medical records identified by the Veteran. In March 2010, the Veteran was afforded a VA examination in connection with this appeal. This examination and associated report are adequate. Along with the other evidence of record, they provided sufficient information and a sound basis for a decision on the Veteran's claim. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, VA has satisfied its duties to notify and assist, and there is no prejudice to the Veteran in adjudicating this appeal. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Increased Rating for Chronic Diarrhea The Veteran claims an increased (compensable) rating for the service-connected chronic diarrhea. Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's chronic diarrhea is rated under DC 7399-7319, and is therefore rated under the criteria of DC 7319 for irritable colon syndrome. Under DC 7319, mild irritable colon syndrome, with disturbances of bowel function with occasional episodes of abdominal distress, warrants a noncompensable (0 percent) rating. Moderate irritable colon syndrome, with frequent episodes of bowel disturbance with abdominal distress, warrants a 10 percent rating. Severe irritable colon syndrome, with diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress, warrants a 30 percent rating. 38 C.F.R. § 4.114, DC 7319. In a February 2010 statement, the Veteran asserted that he has stomach spasms, cramps, and diarrhea several times per week. In another February 2010 statement, the Veteran reported episodes of diarrhea three times per week, and that he had priced adult protective pads and will use them if diarrhea worsened. He also reported that he slept with a waterproof pad and took pads with him when he traveled. See also November 2016 Board hearing transcript. In a February 2010 statement, the Veteran's spouse reported that the Veteran had several soiling incidents in his clothes and on bedding. She indicated that they kept a waterproof pad under their bed and took it with them when they traveled, and that they priced adult protective undergarments. In a December 2010 statement, the Veteran noted that he had episodes of diarrhea at least three to four times per week, with continuing problems that lasted two to three hours. In statements dated in January 2016 and May 2016, the Veteran reported incidents of soiling his clothes. The Veteran underwent a VA examination in March 2010. He reported diarrhea, cramps, and spasms, as well as abdominal pain, but denied nausea, vomiting, and constipation. The Veteran indicated that episodes of diarrhea, cramps, and spasms occurred five times per week each lasting for about five minutes, and that he slept on a pad and traveled with a pad to sleep on. The Veteran noted that he had several incidents of soiled in his clothes and on bedding, and that he had priced adult pads. Examination of the abdomen revealed no striae on the abdominal wall, distension of superficial, ostomy, tenderness to palpation, splenomegaly, ascites, liver enlargement, or aortic aneurysm. Rectal examination revealed normal findings, with no hemorrhoids, fissures, or masses. A February 2010 VA treatment record shows that the Veteran's abdomen was soft with no bowel sounds. A June 2010 VA treatment record noted that the Veteran had no abdominal pain, constipation, or diarrhea. Upon examination, the Veteran's abdomen was soft and nontender with normactive bowel sounds, and with no masses palpated. An August 2013 VA treatment record shows that the Veteran's abdomen was soft, with normal bowel sounds, and no hepatosplenomegaly was noted. Examination of the abdomen revealed no evidence of guarding, tenderness, rebound, rigidity, masses, or bruits. Based on the foregoing, and resolving reasonable doubt in the Veteran's favor, an evaluation of 10 percent for chronic diarrhea is warranted in this case. The Veteran and his wife have consistently reported diarrhea, with frequent episodes of bowel disturbance and abdominal distress. Such symptoms and resulting functional impairment more nearly approximates the criteria for a 10 percent rating for chronic diarrhea under DC 7319. 38 C.F.R. § 4.114. The Board finds that an evaluation in excess of 10 percent is not warranted for chronic diarrhea for the entire appeal period. A higher rating of 30 percent under DC 7319 requires a disability picture akin to irritable colon syndrome resulting in symptoms of diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. During the November 2016 Board hearing, the Veteran specifically reported that he does not have constant abdominal distress. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met); cf Johnson v. Brown, 7 Vet. App. 95 (1994) (only one disjunctive "or" requirement must be met in order for an increased rating to be assigned). The requirement under DC 7319 of diarrhea or alternating diarrhea and constipation "with" more or less constant abdominal distress means that both factors are required. As the Veteran does not have more or less constant abdominal distress, the 10 percent rating is the appropriate rating under DC 7319, and his chronic diarrhea does not warrant a higher rating than 10 percent. No higher rating is warranted under any other diagnostic code. DC 7332, for impairment of sphincter control the rectum and anus, provides that constant slight impairment of sphincter control, or occasional moderate leakage warrants a 10 percent rating. Occasional involuntary bowel movements, necessitating wearing of pad, warrant a 30 percent rating. Extensive leakage and fairly frequent involuntary bowel movements warrant a 60 rating. Complete loss of sphincter control warrants a 100 percent rating. 38 C.F.R. § 4.114. While the Veteran and his wife have consistently reported diarrhea and abdominal distress, the record does not reflect impairment of sphincter control necessitating wearing of pad, or any other symptomology that would warrant a higher rating under the criteria of DC 7332. See 38 C.F.R. § 4.114, DC 7332. The record does not show any clinical findings of impairment of sphincter control. Moreover, while the Veteran and his wife reported that the Veteran sleeps on a pad, puts a pad under his bed, and takes one with him when he travels, the record shows that the Veteran's chronic diarrhea does not necessitate wearing a pad. The Veteran and his wife reported that they priced adult protective undergarment pads, but they did not indicate that they in fact bought them or that the Veteran wears pads on a regular basis. Accordingly, an evaluation of 10 percent, but no greater, for chronic diarrhea is warranted, and there is no basis for staged rating of the disability. As the preponderance of the evidence is against assignment of any higher rating, the benefit-of-the doubt doctrine is not applicable to that extent. 38 C.F.R. §§ 4.3, 4.7, 4.114, DCs 7319, 7332. The Veteran has not expressly raised the matter of entitlement to an extraschedular rating. His contentions have been limited to those discussed above, i.e., that his chronic diarrhea is more severe than is reflected by the assigned rating. As explained above in awarding a higher schedular rating of 10 percent, the criteria for an even higher schedular rating were considered, but the rating assigned was upheld because the rating criteria are adequate. In view of the circumstances, the Board finds that the rating schedule is adequate, even in regard to the collective and combined effect of all of the Veteran's service connected disabilities, and that referral for extraschedular consideration is not warranted under the circumstances of this case. Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). ORDER An evaluation of 10 percent, but not in excess thereof, for chronic diarrhea, for the entire appeal period, is granted, subject to the laws and regulations governing the payment of VA benefits. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs