Citation Nr: 18141721 Decision Date: 10/11/18 Archive Date: 10/11/18 DOCKET NO. 16-35 549A DATE: October 11, 2018 ORDER Entitlement to an initial rating in excess of 20 percent for residuals of chronic bowel obstruction is denied. FINDING OF FACT The Veteran’s residuals of chronic bowel obstruction were manifested by moderate symptoms of intermittent abdominal pain and/or colic pain, nausea, vomiting, and alternating diarrhea and constipation. However, the disability has not been manifested by severe symptoms objectively supported by examination findings. CONCLUSION OF LAW The criteria are not met for an initial rating higher than 20 percent for residuals of chronic bowel obstruction. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27, 4.113; 4.114, Diagnostic Code 7329. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1976 to September 1979. Entitlement to a rating in excess of 20 percent for residuals, chronic bowel obstruction Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted considering the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See id at 126. The Veteran’s residuals of chronic bowel obstruction has been assigned an initial 20 percent rating under 38 C.F.R. § 4.114, DC 7329 for resection, large intestine. Under DC 7329, a 20 percent rating is assigned where symptoms are moderate. A 40 percent rating is assigned where there are severe symptoms, objectively supported by examination findings. The terms “moderate” and “severe,” amongst other components of the rating criteria are not expressly defined in the rating schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. A note to DC 7329 states that where residual adhesions constitute the predominant disability, rate the underlying condition under DC 7301. Diagnostic code 7301 provides ratings for peritoneum adhesions. Under DC 7301, a 50 percent rating is warranted for severe adhesions; 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. A note to DC 7301 states that ratings for adhesions will be considered when there is history of operative or other traumatic or infectious (intraabdominal) process, and at least two of the following: disturbance of motility, actual partial obstruction, reflex disturbances, presence of pain. 38 C.F.R. § 4.114, DC 7301. Also, 38 C.F.R. § 4.113 provides that there are diseases of the digestive system, particularly within the abdomen, which, while differing in the site of pathology, produce a common disability picture characterized in the main by varying degrees of abdominal distress or pain, anemia and disturbances in nutrition. Consequently, certain coexisting diseases in this area, as indicated in the instruction under the title “Diseases of the Digestive System,” do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding as outlined in §4.14. The VA rating schedule at 38 C.F.R. § 4.114 accordingly clarifies—evaluation under diagnostic codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 inclusive will not be combined with each other. A single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. Analysis The Veteran contends that his residuals, chronic bowel obstruction is more severe than the 20 percent rating depicts. In August 2015, the Veteran was afforded a VA examination of his intestinal condition. The examiner reviewed the c-file. The Veteran stated that during service, he began having recurrent intestinal complaints which continued after discharge. His intestinal problems lead to bowel obstruction in 1982 which required surgical intervention. Since the surgery, the Veteran had been hospitalized three times for obstruction, most recently in 2012. The Veteran stated that every three months obstructive symptoms occur, and he will go on liquid diet until the symptoms pass. He also stated that due to his condition, he was on a very limited diet. The August 2015 VA examiner diagnosed the Veteran with loop bowel repair due to repair of loop bowel causing obstruction. The Veteran did not require continuous medication to control his intestinal conditions. He experienced intermittent abdominal and/or colic pain, nausea, vomiting, alternating diarrhea and constipation, and pulling pain on attempting work or aggravated by movements of the body. The Veteran did not experience weight loss or an inability to gain weight that was attributable to intestinal surgery. Additionally, he did not have any interference with absorption and nutrition attributable to resection of the small intestine. The Veteran’s condition did not require an ileostomy or colostomy nor did he have persistent intestinal fistula attributable to a surgical intestinal condition. The Veteran had scars related to his condition. However, the scars were not painful and/or unstable or had a total area greater than 39 square cm (6 square inches). There were no other pertinent physical findings, complications, conditions, signs, and/or symptoms related to the Veteran’s condition. The Veteran’s intestinal surgery residuals impacted his ability to work. Importantly, the August 2015 VA examiner concluded that the Veteran had moderate symptoms attributable to resection of large intestine. On February 2, 2015, the Veteran was seen at the Lackawanna CBOC. He stated that for the past three weeks, he had been having abdominal discomfort. The Veteran further stated that he was on a liquid diet and only able to move his bowels daily. His stool was loose, and he was bloated and had lots of gas. He felt nauseous but did not vomit. He stated that the condition was exacerbated with solid and greasy foods. The Veteran did not take any over the counter medications. He had had previous surgeries and episodes of partial bowel obstruction with the same symptoms; therefore, an x-ray of the abdomen was ordered. The February 3, 2015 x-ray of the abdomen was negative for any obstruction. In May 2015, the Veteran had another x-ray of his abdomen. That x-ray was also negative for any obstruction. In April 2015, the Veteran submitted his private medical records. However, the records are outside of the period on appeal. As such, the Board affords them little probative weight. In February 2016, the Veteran was seen at the Lackawanna CBOC. The Veteran stated that he had colonoscopy done two years ago, and it was normal. He was told to have a repeat in 10 years. In April 2017, the Veteran was seen at his Primary Care Note. He denied complaints of abdominal pain, nausea, vomiting, bowel changes, constipation, diarrhea, coffee ground emesis, dyspepsia, hematemesis, melena, or hematochezia. Based on the evidence of record, the Board finds that a rating in excess of 20 percent for residuals, chronic bowel obstruction is not warranted. The August 2015 VA examiner noted that the Veteran did not require continuous medication to control his intestinal conditions. The Veteran had experienced intermittent abdominal pain and/or colic pain, nausea, vomiting, alternating diarrhea and constipation and pulling pain on attempting work or aggravated by movements of the body. However, he did not have weight loss or an inability to gain weight that was attributable to intestinal surgery. Additionally, he did not have any interference with absorption and nutrition attributable to resection of the small intestine. His condition did not require an ileostomy or colostomy nor did he have persistent intestinal fistula attributable to a surgical intestinal condition. The VA examiner noted the Veteran’s symptoms were moderate in nature. Additionally, the treatment records do not show severe symptoms. Accordingly, the Board finds that a rating of 20 percent is warranted under DC 7329. Further, the Board has considered the potential application of the other provisions of 38 C.F.R., Parts 3 and 4. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The Veteran has a surgical scar associated with his disability. However, the scar was not painful and/or unstable nor did it cover a total area of greater than 39 sq. cm. Therefore, a separate rating for a scar is not warranted. See 38 C.F.R. Part 4, DC 7804, 7805. The Board notes that in his May 2016 Notice of Disagreement, the Veteran stated that the criteria for 50 percent would require surgery with drainage tubes. He stated that in 1982, he had surgery with drainage tubes. He further stated that he had been hospitalized three other times for obstructions of the bowel. Due to his condition, he was unable to eat bananas, chocolate, cheese, or meat. He also stated that he was unable to gain weight. The Veteran further stated that his disability should be rated under DC 7301. As noted above, under DC 7301, a 50 percent is warranted for severe adhesions; 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. However, even accepting the Veteran’s contentions, the record does not reflect that the Veteran has severe peritoneal adhesions with partial obstruction shown by x-ray, as is necessary for the higher 50 percent rating. The Veteran’s 2015 abdominal x-rays were negative for any obstruction. Although the VA examiner noted intermittent abdominal pain and/or colic pain, nausea, and vomiting, neither the examiner nor the Veteran’s treatment records noted severe peritonitis, ruptured appendix, perforated ulcer, or operation with drainage. Therefore, a greater compensation under 38 C.F.R. § 4.114, DC 7301, 7319, 7323, or 7328 is not warranted. The Board has considered the Veteran and his representative’s statements regarding the severity of the Veteran’s residuals, chronic bowel obstruction. However, as lay persons, the Veteran and his representative do not have the training or expertise to render a competent opinion which is more probative than the VA examiner’s opinion and the evidence of record, as this is a medical determination that is complex. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994)). Thus, the lay opinions are outweighed by the evidence of record, to include the VA examiner’s opinions and treatment records. In summary, the Board finds that the preponderance of the evidence is against the Veteran’s claim for entitlement to a rating in excess of 20 percent for residuals, chronic bowel obstruction. In reaching this 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. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). BISWAJIT CHATTERJEE Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Henry, Associate Counsel