Citation Nr: 1801500 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 10-48 148 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for acute diverticulitis, to include diverticulosis. 2. Entitlement to service connection for bronchial asthma. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Snoparsky, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from September 1978 to September 1980 and from October 2001 to September 2004. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Commonwealth of Puerto Rico. The claims file is now entirely in VA's secure electronic processing system, Virtual VA and Veterans Benefits Management System (VBMS). The issue of bronchial asthma is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's service-connected acute diverticulitis is manifested by moderate symptoms and frequent episodes of bowel disturbance with abdominal distress. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for acute diverticulitis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7327-7319 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Assist and to Notify Neither the Veteran nor his 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. Legal Criteria Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.20 (2017). When a question arises as to which of two ratings applies under a particular Diagnostic Code (DC), the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Furthermore, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. 38 C.F.R. § 3.102 (2017); Mittleider v. West, 11 Vet. App. 181, 182 (1998). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3 (2017). Staged ratings are appropriate for an increased rating claim 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) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)). In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the Veteran's claim is to be considered. See Fenderson, 12 Vet. App. 119 (1999). The veteran's entire history is to be considered when making a disability determination. 38 C.F.R. § 4.1 (2014); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a veteran's service-connected disability. 38 C.F.R. § 4.14 (2016); see Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). Under DC 7327, diverticulitis is rated as irritable colon syndrome, peritoneal adhesions, or colitis, ulcerative, depending upon the predominant disability picture. Peritoneal adhesions are rated under the provisions of 38 C.F.R. § 4.114, DC 7301. Moderately severe adhesions warrant a 30 percent rating and are manifested by partial obstruction with delayed motility of barium meal and less frequent and less prolonged pain. Severe adhesions, with definite partial obstruction, shown by X-ray, with frequent and prolonged episodes of severe colic distension, nausea, or vomiting, following severe peritonitis, ruptured appendix, perforated ulcer, or operation with drainage, warrant a 50 percent rating. This is the maximum schedular rating assignable under DC 7301. Under DC 7319, a 10 percent rating will be assigned for moderate irritable colon syndrome and related symptoms, to specifically include frequent episodes of bowel disturbance with abdominal distress. The code envisions a 30 percent rating for severe disability manifested by diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. This is the maximum schedular rating under DC 7319. Under DC 7323, where ulcerative colitis is pronounced, resulting in marked malnutrition, anemia, and general debility, or with serious complication as liver abscess, a 100 percent rating is warranted. Severe colitis, with numerous attacks per year and malnutrition, with health only fair during remissions, warrants a 60 percent rating. A 30 percent rating is warranted for moderately severe ulcerative colitis with frequent exacerbations. 38 C.F.R. § 4.114, DC 7323. The rating schedule provides guidance in the evaluation of gastrointestinal disorders. In particular, 38 C.F.R. § 4.112 highlights the importance of weight loss in the evaluation of the impairment resulting from gastrointestinal disorders. For purposes of evaluating conditions in 38 C.F.R. § 4.114, the term "substantial weight loss" means a loss of greater than 20 percent of the individual's baseline weight, sustained for three months or longer; and the term "minor weight loss" means a weight loss of 10 to 20 percent of the individual's baseline weight, sustained for three months or longer. 38 C.F.R. § 4.112. The term "inability to gain weight" means that there has been substantial weight loss with inability to regain it despite appropriate therapy. "Baseline weight" means the average weight for the two-year-period preceding onset of the disease. In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007): Charles v. Principi, 16 Vet. App. 370 (2002). Laypersons have been found not to be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017) (providing, in pertinent part, that reasonable doubt will be resolved in favor of the veteran). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). III. Diverticulitis A. Facts The Veteran was afforded an examination for his diverticulitis in December 2008. The examiner noted the Veteran did not have a history of trauma to the intestines, intestinal neoplasm, nausea, vomiting, constipation, ulcerative colitis, or fistula. The examiner did note the Veteran's history of severe weekly but less than daily diarrhea with more than twelve attacks per year which lasted a day or less. The examiner also noted the Veteran's history of intestinal pain several times a day that were moderate and lasted one to two hours. The examiner also noted the Veteran did not have a history of bowel obstruction, but did have abdominal tenderness. The examiner opined that the Veteran's resulting fecal incontinence would impact his occupational activities. In a February 2009 doctor's note, the Veteran reported discomfort to palpation of the lower abdomen and incontinence. On examination, the examiner noted the Veteran did not have dysphagia, unplanned weight loss, anorexia, or any other condition affecting nutritional status. The Veteran was afforded another examination for his diverticulitis in September 2011. The Veteran reported he had been suffering from fecal incontinence and that his primary care doctor told him to use a diaper. The examiner noted there was no history of trauma to the intestines, neoplasm, nausea, vomiting, constipation, diarrhea, fistula, intestinal pain, ulcerative colitis or other symptoms. The examiner did state the Veteran had abdominal tenderness. The examiner noted the Veteran had been unemployed for the past one or two years because he was unable to find a job. The Veteran had an examination in December 2011 for his diverticulitis. The Veteran stated he has had fecal incontinence since 2005. The Veteran stated he had frequent abdominal pain and bloating associated with involuntary bowel movements, necessitating the wearing of a pad. The Veteran reported the leakage was affecting intimacy with his wife and his social life. The Veteran stated he had to change his pads two to three times per day. The examiner noted the Veteran had been unemployed for the past two to five years because he had been unable to get a job even though he had tried. The examiner opined the Veteran's disability would impact his occupational activities by creating poor social interactions, problems lifting and carrying things, and fecal incontinence. The examiner noted the Veteran's intestinal condition impacted his daily activities and had a moderate impact on his ability to do chores, shopping, recreation, and traveling. The examiner noted the Veteran's intestinal condition prevented him from exercising or playing sports. The Veteran had an examination in September 2012 for his diverticulitis. The examiner noted the Veteran's 2003 diagnosis of diverticulitis. The examiner noted medication was not necessary to control the Veteran's condition and that the Veteran had previously had surgical treatment for an intestinal condition. The examiner reported the Veteran suffered from frequent episodes of bowel disturbance with abdominal distress, but did not suffer from weight loss, malnutrition, tumors or neoplasms. The examiner opined the Veteran's diverticulitis did not preclude him from sustaining or maintaining gainful employment. The Veteran was afforded another examination for his diverticulitis in May 2014. The examiner reviewed the Veteran's file and noted his diagnosis of diverticulitis. The Veteran reported progressively worsening fecal incontinence and that he used absorbent material that needed to be changed three to four times per day, but had not been hospitalized for his condition. The Veteran also reported he did not take medication for his condition. The examiner noted the Veteran had frequent episodes of bowel disturbance with abdominal distress. The examiner stated the Veteran did not have weight loss attributable to his intestinal condition, malnutrition, tumors, or neoplasms. The examiner stated the Veteran's intestinal condition did not impact his ability to work. The Veteran was afforded another examination for his diverticulitis in May 2015. The examiner reviewed the Veteran's file and noted the Veteran's diagnosis of diverticulitis. The examiner noted the Veteran did not require medication to control his condition. The examiner stated the Veteran did not have episodes of bowel disturbance with abdominal distress, weight loss, malnutrition, tumors, or neoplasms. The examiner stated the Veteran's intestinal condition did not impact his ability to work. The examiner opined that after the acute episodes of diverticulitis with abdominal pain in 2003, the diverticular disease has been asymptomatic. In a May 2015 examination, the examiner noted there was no evidence of irritable bowel syndrome (IBS). B. Analysis The Veteran is currently rated as 10 percent disabled due to his diverticulitis under DC 7319. In order to qualify for the next higher, 30 percent rating, the evidence would have to show that the Veteran has severe diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. The December 2008 examiner noted the Veteran suffered from severe weekly diarrhea with more than twelve attacks per year and that the Veteran had moderate intestinal pain several times per year and did have abdominal tenderness. In December 2011, the Veteran reported he had frequent abdominal pain and bloating associated with involuntary bowel movements. The September 2012 examiner reported the Veteran suffered from frequent episodes of bowel disturbance with abdominal distress. In May 2014, the Veteran reported progressively worsening fecal incontinence and the use of absorbent materials that needed to be changed three to four times per day. The examiner noted the Veteran's frequent episodes of bowel disturbance with abdominal distress. The May 2015 examiner, however, stated the Veteran did not have episodes of bowel disturbance with abdominal distress and that the Veteran's condition had been asymptomatic since 2003. None of the Veteran's examiners stated the Veteran had weight loss associated with his diverticulitis (See December 2008, February 2009, September 2011, September 2012, May 2014, and May 2015 examinations). While the majority of the evidence shows the Veteran suffers from frequent episodes of bowel disturbance with abdominal distress, only one of the Veteran's examiners noted the Veteran's symptoms were severe (See December 2008 examination). Additionally, the December 2008 examiner noted the Veteran's diarrhea was episodic and did not indicate that the Veteran's abdominal distress was constant. The rest of the examiners noted frequent, but not severe, symptoms with the Veteran's latest examiner opining that the Veteran's diverticulitis was asymptomatic. While the Veteran's medical records show the Veteran has continued to seek treatment for his diverticulitis symptoms, they do not show the Veteran has severe symptoms of diarrhea with more or less constant abdominal distress. Because the preponderance of the evidence is against the claim, a higher 30 percent rating under DC 7319 must be denied. As noted above, under DC 7327, diverticulitis can be rated as irritable colon syndrome, peritoneal adhesions, or colitis, ulcerative, depending upon the predominant disability picture. Therefore, consideration under DC 7301 and DC 7323 is warranted. Under DC 7301, in order to qualify for the next higher, 30 percent rating, the evidence would have to show the Veteran suffered from moderately severe peritoneal adhesions with partial obstruction manifested by delayed motility of barium meal and less frequent and less prolonged episodes of pain. The evidence does not show the Veteran suffers from these symptoms and does not show the Veteran suffers from moderately severe peritoneal adhesions. Therefore, a higher rating under DC 7301 is not warranted. Under DC 7323, in order to qualify for the next higher, 30 percent rating, the evidence would have to show the Veteran suffered from moderately severe ulcerative colitis with frequent exacerbations. The evidence does not show the Veteran suffers from moderately severe ulcerative colitis. Therefore, a higher rating under DC 7323 is not warranted. The Board has considered whether a compensable disability rating would be appropriate under alternative diagnostic code provisions. While the Veteran did have resection of his large intestine, in order to qualify for the next higher, 20 percent rating under DC 7329, the Veteran would have to have moderate symptoms associated with this resection. The evidence does not show the Veteran suffers from moderate symptoms due to the resection of his large intestine (DC 7329). Therefore, a higher rating under another diagnostic code is not warranted. Additionally, the Court has held that a request for a total disability rating based on individual unemployability (TDIU), whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In the instant case, there is no evidence that the Veteran's diverticulitis renders him unemployable. The Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C.A. §5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57(1990). ORDER An initial evaluation in excess of 10 percent for acute diverticulitis, to include diverticulosis is denied. REMAND The Veteran contends that his pre-existing bronchial asthma was aggravated beyond its natural progression due to his time in service. The Veteran's medical records show he sought treatment for his asthma both while he was out of service and while he was in service. The Veteran was seen for his bronchial asthma in the mid-1990s. In an examiner's note from December 2001, the examiner noted the Veteran was seen for asthma. In his March 2003 post-deployment questionnaire, while the Veteran indicated his health was poor, his lungs were found to be normal by the examiner. The Veteran was seen in October 2004 for his bronchial asthma, a month after his separation from service. The examiner noted this was a permanent condition. In a September 2011 examination, the Veteran stated he was hospitalized for bronchial asthma in 1979 and had no further episodes until 2002 when he had an asthma attack. The Veteran reported he had been under treatment ever since for bronchial asthma and treated himself twice per day with an albuterol pump as needed. In September 2011, the examiner opined that the Veteran's bronchial asthma was not caused by or aggravated by the Veteran's active duty service. However, the examiner based this opinion on there being no evidence of asthma in the Veteran's service treatment records (STRs). The examiner did not take into account the Veteran's lay statements or consider the Veteran's medical records of treatment post-service. Therefore, the Board finds the examination inadequate and a new examination is warranted. Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the case is REMANDED for the following action: 1. The AOJ should obtain any of the Veteran's outstanding medical records and associate them with the claims file. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his bronchial asthma. The claims file must be reviewed by the examiner and the report should note that review. Based on the examination results and a review of the record, the examiner should opine on the following: (a) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's bronchial asthma was incurred during active duty service. (b) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's bronchial asthma was aggravated by active duty service. The examiner should provide a complete rationale for any opinion provided. 3. After #1 and #2 have been completed, readjudicate the claim on appeal. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals 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. §§ 5109B, 7112 (2012). ______________________________________________ Cynthia M. Bruce Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs