Citation Nr: 1805981 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 09-46 662A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to an initial rating in excess of 60 percent for a gastrointestinal disability. REPRESENTATION Veteran represented by: Pennsylvania Department of Military and Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and a VA medical expert ATTORNEY FOR THE BOARD R. Brunot, Associate Counsel INTRODUCTION The Veteran served in the United States Marine Corp from June 2000 to September 2000, July 2001 to August 2001, June 2002 to July 2002, April 2004 to June 2006, and October 2006 to March 2007. This matter comes before the Board of Veterans' Appeals (Board) from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. The jurisdiction of this case subsequently transferred to the RO in Providence, Rhode Island. The Veteran testified at a hearing before a Veteran's Law Judge (VLJ) in September 2010 and a copy of the transcript is of record. The VLJ who held the hearing is no longer employed by the Board. The law requires that the VLJ who conducted the hearing participate in making the final determination of the claims. 38 U.S.C. § 7107(c) (2012); 38 C.F.R. § 20.707 (2017). By a January 2017 letter, the Veteran was given an opportunity to request another hearing. The letter advised him that if he did not respond within 30 days, the Board would assume that he did not want another hearing. No response was received; therefore, the Board assumes the Veteran does not want an additional hearing. This case was remanded to the Agency of Original Jurisdiction (AOJ) in June 2011 to obtain additional treatment records and afford the Veteran a new VA examination. VA has a duty to substantially comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). VA obtained the Veteran's outstanding VA treatment records and private treatment records. Id. Additionally, in December 2015 and November 2016 the Veteran received VA examination. Furthermore, in June 2017, the Board remanded the case so the RO could consider the Veteran's November 2016 VA examination. The RO issued a November 2017 Supplemental Statement of the Case (SSOC) discussing the November 2016 VA examination. Therefore, the AOJ substantially complied with the Board's remand directives. FINDING OF FACT At worst, the Veteran's gastrointestinal disability manifested with numerous attacks a year and malnutrition. CONCLUSION OF LAW The Veteran's gastrointestinal disability has not met the criteria for an initial evaluation in excess of 60 percent. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.114, Diagnostic Code 7323 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Neither the Veteran nor his representative have 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 a duty to assist argument). 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, 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). 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). Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection in March 2010. Fenderson v. West, 12 Vet. App. 119 (1999). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a competent source. Second, the board must determine if the evidence is credible. Third, the Board must weigh the probative value of evidence in light of the entirety of the record. The Veteran's gastrointestinal disability is rated under Diagnostic Code 7323, Ulcerative Colitis. 38 C.F.R. § 4.114. Under this Diagnostic Code, a 60 percent rating is warranted with a severe disability with numerous attacks a year and malnutrition, the health only fair during remissions. A 100 percent rating is warranted with a pronounced disability resulting in marked malnutrition, anemia, and general debility or with serious complications as liver abscess. The Veteran received his first VA examination in December 2007. The VA examiner noted that the Veteran experienced diarrhea 2 to 6 times a day and was treated for gastroenteritis 3 to 4 times. The Veteran noted his diarrhea began predictably about 1 hour after a meal. Further, the Veteran noted specific foods aggravated his stomach. He denied having blood on his toilet paper. The Veteran's VA treatment records from 2008 documented his continued complaints of diarrhea and abdominal cramping. The Board notes the Veteran was hospitalized in February 2008 and July 2008. The Veteran's symptoms continued to persist and included intermittent frequent diarrhea, abdominal cramping, and occasional nausea and vomiting. The Veteran also experienced unexplained weight loss. These symptoms were well documented in his VA records from 2008 onward. In May 2009, the Veteran's wife wrote a statement describing his condition. The Veteran's wife stated that he had intense cramping causing him to double over about 8 to 10 times a day. She stated that he spent hours in the bathroom each day. The Veteran's diet was very restricted and it was hard to find foods that would not send him to the bathroom with cramping, gas, diarrhea, or vomiting. The Veteran had 12 to 15 explosive bowel movements per day if he ate the wrong food. The Veteran would lie in bed curled in the fetal position for days. She stated that his stomach was bloated. At a September 2010 Board Hearing, the Veteran's gastroenterologist testified about the Veteran's condition. The Veteran's doctor concluded the best Diagnostic Code to rate the Veteran under was Diagnostic Code 7323. Furthermore, the Veteran stated based on the Veteran's February 2008 treatment records which showed weight loss, malnutrition, and anemia, the Veteran should be rated at 60 percent. The Veteran's doctor noted that he still had symptom flares but they fell into the category of frequent exacerbations, and the Veteran was no longer anemic, malnourished, or underweight. The Veteran's doctor concluded that at present the Veteran's disability was moderately severe and would place him in the 30 percent category. The Veteran's next VA examination was in December 2015. The VA examiner noted the Veteran still experienced nausea, vomiting, diarrhea, fever, abdominal cramping, and rapid weight loss. The Veteran had flares about every 2 months lasting 12 to 16 hours before they were under control. When taking his medication, he would go to the bathroom about 6 times a day, and still had several bouts of diarrhea. The episodes were more or less constant with abdominal distress, and he had 7 or more exacerbation attacks in the past year. While the Veteran had weight loss he was not malnourished. The Veteran had a flexible schedule at work, and had to take frequent restroom breaks which impacted his productivity. The Veteran missed about 4 days of work a month due to his disability. The Veteran's most recent Disability Benefits Questionnaire was in November 2016. The Veteran was noted as having watery diarrhea, abdominal distress, such as cramping, nausea, and vomiting during a flare up. He had frequent episodes of bowel disturbance with abdominal distress. The VA examiner noted again the Veteran had weight loss attributed to his disability but no malnutrition or other serious complications. The Veteran's disability impacted his ability to work in that he had to use the restroom frequently. In considering all the evidence, the Board finds the Veteran's disability picture is best captured by his current 60 percent rating. The Board notes the Veteran's December 2015 VA examination, November 2016 DBQ, and more recent treatment record noted the Veteran no longer suffered from malnutrition. A higher rating is warranted when the Veteran's disability results in marked malnutrition, anemia, and general debility, or with serious complications as liver abscess. The Board considers the credible lay statements from the Veteran's wife documenting how the Veteran's condition affected his life, but even when considering her lay statement the Board finds the Veteran's disability is best captured as a severe disability resulting with numerous attacks a year. Furthermore, the Board considers the testimony of the Veteran's doctor at the September 2010 Board hearing. The Veteran's doctor noted since February 2008, when the Veteran's condition was marked by malnutrition, the Veteran's condition had improved. Additionally, the Veteran's doctor noted at that hearing that the Veteran's disability was best captured by the 30 percent rating. Therefore, the Board finds the evidence of record shows the Veteran's disability picture is more aptly captured by a 60 percent rating and an increase to 100 percent is not warranted at this time. In June 2017, the Board granted a total disability rating based on individual unemployability (TDIU). ORDER Entitlement to an initial rating for gastrointestinal disability in excess of 60 percent is denied. ____________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs