Citation Nr: 18142563 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 16-25 653 DATE: October 16, 2018 ORDER Entitlement to a rating in excess of 20 percent for residuals of a resection of the large intestine with cholecystectomy is denied. Entitlement to an effective date prior to April 7, 2015 for a 20 percent rating for residuals of a resection of the large intestine with cholecystectomy is denied. FINDINGS OF FACT 1. Residuals of a resection of the large intestine with cholecystectomy are productive of no more than moderate symptoms. 2. On April 7, 2015, VA received the appellant’s claim of entitlement to an increased rating for residuals of a resection of the large intestine with cholecystectomy. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for residuals of a resection of the large intestine with cholecystectomy have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.1, 4.7, 4.114, Diagnostic Code 7329. 2. The criteria for an effective date prior to April 7, 2015 for a 20 percent rating for residuals of a resection of the large intestine with cholecystectomy have not been met. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o)(1).   REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served from March 1969 to May 1982, and from March 1984 to July 1991. In August 2015, the agency of original jurisdiction raised the appellant’s rating from noncompensable to 20 percent for residuals of a resection of the large intestine with cholecystectomy effective April 7, 2015. The appellant disagreed with the percentage increase and with the effective date, and this appeal ensued. The case has been properly developed with respect to both of those issues, and both will be considered below. Residuals of a resection of the large intestine with cholecystectomy Disability ratings are determined by comparing the manifestations of a particular disability with the criteria set forth in the Diagnostic Codes of the VA Schedule for Rating Disabilities. 38 U.S.C. § 1155, 38 C.F.R. Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity (in civilian occupations) resulting from service-connected disability. 38 C.F.R. § 4.1. In this case, the appellant is seeking separate ratings for his service-connected residuals of a resection of the large intestine and his service-connected residuals of a cholecystectomy. The residuals of a resection of the large intestine are rated in accordance with 38 C.F.R. § 4.114, Diagnostic Code 7329, while the residuals of a cholecystectomy are rated in accordance with 38 C.F.R. § 4.114, Diagnostic Code 7318. However, there are diseases of the digestive system, particularly within the abdomen, which, while differing in the site of pathology, produce a common disability picture. Consequently, certain coexisting diseases in that area do not lend themselves to distinct and separate disability evaluations without violating the prohibited practice of pyramiding (the evaluation of the same disability or same manifestations under different diagnostic codes). 38 C.F.R. § 4.14. The Veteran’s residuals of a resection of the large intestine with cholecystectomy are two such disorders. Therefore, the VA Rating Schedule specifically prohibits separate ratings under diagnostic codes 7318 and 7329. Rather, 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. In this case, the predominant disability is the residuals of a resection of the large intestine. A 20 percent rating is warranted when residuals of a resection of the large intestine are productive of moderate symptoms. A 40 percent rating is warranted when there are severe symptoms, objectively supported by examination findings. 38 C.F.R. § 4.114, Diagnostic Code 7329. Where there is a question as to which of two evaluations shall 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. During the course of an appeal, an appellant 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). Therefore, the following analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. VA treatments records, dated from April 2014 through June 2017, show that the appellant’s service-connected gastrointestinal disorder is manifested primarily by complaints of constipation. He has been prescribed laxatives and stool softeners, but otherwise, he has received no treatment for gastrointestinal problems. In fact, his abdomen has been, generally, found to be normal. In July 2015, VA examined the appellant to determine the severity of his gastrointestinal disorder. During this examination the appellant reported chronic constipation and that greasy or fatty foods caused severe stomach cramping and bloating. He also reported that he had had an adhesion revised in 2013. Although he reported abdominal and/or colic pain, there was no evidence of weight loss or inability to gain weight due to his intestinal surgery and no evidence that he then had, or had ever had, a persistent intestinal fistula attributable to his surgical intestinal condition. The examiner found the appellant’s symptoms no more than moderate in nature. There were no other pertinent physical findings, complications, conditions, or signs or symptoms related to the appellant’s residuals of a resection of the large intestine with cholecystectomy residuals. Specifically, there were no findings of severe symptoms. There is no competent, credible evidence to the contrary; and, therefore the Board finds that the appellant meets or more nearly approximates the schedular criteria for the 20 percent rating currently in effect. Accordingly, that rating is confirmed and continued, and the appeal is denied. Earlier Effective Date The appellant also seeks entitlement to an effective date prior April 7, 2015 for the 20 percent rating for residuals of a resection of the large intestine with cholecystectomy residuals. Generally, the effective date of an award of increased compensation for service-connected disability shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o)(1). There is an exception in that the effective date may the earliest date as of which it is ascertainable that an increase in disability has occurred, provided that the application therefor is received within one year from such date. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. §§ 3.1(p), 3.155(a); Servello v. Derwinski, 3 Vet. App. 196 (1992). The appellant’s initial claim for an increased rating for the residuals of a resection of the large intestine with cholecystectomy was received by VA on April 7, 2015. There is neither evidence of any ascertainable increase in disability during the year prior to April 7, 2015, nor is there any communication prior to that date, which could even be construed as an informal claim for an increased rating for the residuals of a resection of the large intestine with the residuals of a cholecystectomy. Thus, there is simply no basis for an effective date prior to April 7, 2015 for the 20 percent rating for that disorder. As such, entitlement to an earlier effective date is denied. DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Harold A. Beach, Counsel