Citation Nr: 18146472 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 12-02 781 DATE: October 31, 2018 ORDER 1. Entitlement to a rating in excess of 30 percent for pancolitis (to include irritable bowel syndrome) is denied. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The 30 percent rating assigned is the maximum schedular rating provided for irritable colon syndrome; more than moderately severe ulcerative colitis with frequent exacerbations is not shown; severe disability with numerous attacks a year and malnutrition, the health only fair during remissions, is not shown at any time; symptoms or impairment not encompassed by schedular criteria are not shown. 2. The Veteran’s service-connected disabilities (major depressive disorder, rated 50 percent; pan colitis (to include irritable bowel syndrome), rated 30 percent; hemorrhoids, rated 20 percent; and surgical scar, rated 0 percent) are not shown to be of such nature and severity as to render him unable to secure and maintain substantially gainful employment. CONCLUSIONS OF LAW 1. A rating in excess of 30 percent for pancolitis is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.114, Diagnostic Codes (Codes) 7319, 7323. 2. The schedular criteria for a TDIU rating are met, but a TDIU rating is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.340, 3.341, 4.15, 4.16, 4.18, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from September 1995 to December 1996. These matters are before the Board on appeal from a March 2011 rating decision. In January 2013, a videoconference hearing was held before the undersigned; a transcript is in the record. In April 2014 and October 2017, the Board remanded the matters for additional development. 1. A rating in excess of 30 percent for pancolitis (to include irritable bowel syndrome) is denied. The Veteran contends that a rating in excess of the 30 percent currently assigned for irritable colon syndrome under Code 7319 is warranted because he suffers from malnutrition, which under Code 7323 (for ulcerative colitis) warrants a 60 percent rating. The Board notes that ulcerative colitis is a disease separate and distinct from the Veteran’s service-connected irritable colon syndrome. Nonetheless, if he does have malnutrition due to his service connected disability, such symptom would have to be accounted for by the rating assigned. On February 2011 VA examination, the Veteran reported a weight loss of 10 pounds as well as nausea and vomiting just about every day. He reported that he fluctuated between constipation and diarrhea, with about 1 to 2 loose stools per day and constipation at least once a week. He did not have any fistulas. He reported that his abdominal pain caused him distress. He reported frequent cramps occurring just about daily and lasting throughout the day, located mainly in the right lower quadrant. He reported suffering about 1 to 2 attacks of ulcerative colitis per year. He reported that he was recently released from his work, not related to his condition, but that he could not stand for long periods of time even he if wanted to go back to work, because of the cramping and abdominal pain. On physical examination, the examiner noted that the Veteran did not look malnourished and there were no signs of anemia. There was no fistula, ostomy, or abdominal mass. There were no signs of weight gain or loss. The Veteran was seen for a bloody bowel movement in October; a CT of his abdomen did not show any kind of colonic wall thickening, and the reading was an unremarkable CT of the abdomen, with no evidence of appendicitis or diverticulitis. The examiner found no mention from gastroenterology as far as the Veteran having ulcerative colitis; no colonoscopy showed that he had any kind of inflammation that would lead to a diagnosis of ulcerative colitis. The examiner could not say for sure that the Veteran had a pancolitis, opining that it sounded more like irritable bowel syndrome with the constant bloating he complained of and the daily loose stools followed by constipation. Based on this evidence, a March 2011 rating decision continued a 30 percent rating for pan colitis (to include irritable bowel syndrome). At the January 2013 Board hearing, the Veteran testified that he had very low energy and frequently felt tired and weak. His representative argued that, as malnutrition is the body’s inability to absorb nutrients, laboratory findings were necessary to determine whether the Veteran is malnourished. On February 2016 VA examination, the examiner noted that the Veteran was seen in October 2014 for possible inflammatory bowel syndrome because a 2011 biopsy showed chronic inflammation; he was started on mesalamine and Protonix and his symptoms initially improved. The Veteran reported that this past year, he developed more abdominal pain and rectal bleeding, so he had two colonoscopies and an EGD; these were unremarkable except for internal and external hemorrhoids. He had remained on mesalamine but had not followed with GI since. He reported having a lot of diarrhea, nausea, bleeding, and abdominal pain. He had tried Immodium with no relief. He also continued to have rectal bleeding. He reported waking up at night with diarrhea, and that he was fatigued because of this. He reported daily diarrhea, with 7 to 8 bowel movements daily, all loose. He reported feeling bloated with no improvement after bowel movements. He reported nausea on a daily basis, for which he took promethazine. He reported vomiting multiple times per day with possible blood on occasion. He reported more or less constant abdominal distress. He reported episodes of exacerbations and/or attacks of the intestinal condition, with flares causing significant abdominal pain, diarrhea, nausea/vomiting and rectal bleeding; he had 2 episodes over the previous year to the point where he was seen by gastroenterology and a c-scope was recommended. He did not have weight loss attributable to an intestinal condition. He did not have malnutrition, serious complications or other general health effects attributable to the intestinal condition. Laboratory testing in September 2015 showed hemoglobin of 15.7, hematocrit of 47.2, white blood cell count of 7.1, and platelets at 242. A November 2015 colonoscopy revealed moderate internal and external hemorrhoids but otherwise normal colon; a 2011 colonoscopy with multiple biopsies revealed chronic inflammation; a 2003 colonoscopy with biopsies showed chronic active colitis with patchy ulceration and lymphoid aggregate formation; a November 2015 EGD revealed mild antritis with normal biopsy results and otherwise normal. The diagnoses included irritable bowel syndrome and ulcerative colitis. Based on the treatment and previous biopsy results, the examiner opined that it appeared that the Veteran has an inflammatory bowel disease, and it would be beneficial to see what GI said when they saw him in the coming months in terms of a formal diagnosis. The examiner opined that it may be worth asking for an opinion from a GI specialist as there were some conflicting opinions. The examiner noted that, in terms of his nutrition, the Veteran’s weight was 170 pounds and review of the records showed he was 164 pounds in 2001; he had gained weight over the years, so the examiner did not think he was malnourished. The examiner noted that the albumin level was normal and opined that the pre-albumin level could be checked but he did not think that was necessary at that time. In a November 2017 medical opinion, the reviewing opinion-provider opined that, based on review of medical literature, albumin levels are an indicator of malnutrition, in combination with physical exam findings, as well as weight and weight trends over a certain time frame. The reviewing provider opined that, given the normal albumin level noted [on February 2016 examination], such evidence did not support a finding of malnutrition per se; it was also his opinion that adequate testing was performed. Given this, and upon review of the Veteran’s recorded weights, objective evidence did not support a finding of malnutrition. Additional VA treatment records reflect symptomatology largely similar to that shown on the examinations described above. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. Reasonable doubt as to the degree of disability will be resolved in the veteran’s favor. 38 C.F.R. § 4.3. The Veteran’s service-connected pancolitis is rated under Code 7319 for irritable colon syndrome. Under Code 7319, a (maximum) 30 percent rating is warranted for severe irritable colon syndrome with diarrhea or alternating diarrhea and constipation, with more or less constant abdominal distress. 38 C.F.R. § 4.114, Code 7319. Code 7319 specifically allows only a maximum 30 percent rating unless there are exceptional or unusual circumstances to warrant referring the case for extra-schedular consideration. 38 C.F.R. § 3.321. Ulcerative colitis is rated under Code 7323. Under that Code, a 30 percent rating is warranted for moderately severe disability with frequent exacerbations. A 60 percent rating is warranted for severe disability with numerous attacks a year and malnutrition, the health only fair during remissions. A 100 percent rating is warranted for pronounced disability, resulting marked malnutrition, anemia, and general debility, or with serious complication as liver abscess. The evidence outlined above shows that symptoms of the Veteran’s intestinal disability most closely approximate the criteria for a 30 percent rating under Code 7319. There is no objective evidence that he has malnutrition due to this disability, or health only fair during remissions of numerous attacks per year. The November 2017 reviewing provider, in response to the Board’s specific remand instructions, opined that adequate testing was performed, and that laboratory studies that would reflect malnutrition and the Veteran’s maintenance of weight do not support a finding of malnutrition. No examiner or treatment provider has opined that the Veteran experiences malnutrition due to his service-connected gastrointestinal disability. The preponderance of the evidence (including the Veteran’s self-reports of symptoms and impairment) is against a finding of severe ulcerative colitis; a 60 percent rating under Code 7323 is not warranted. While the assignment of the maximum schedular rating for pancolitis raises a question of whether referral of the claim for increase to the Director of Compensation for consideration of an extraschedular rating is warranted, the Board’s review of the evidence of record in the matter found that referral is not necessary. There is no evident showing or allegation of symptoms or functional impairment not encompassed by the schedular criteria. VA examiners have opined that the Veteran is not unable to work due to his service-connected intestinal disability, and the symptoms he has reported are all encompassed by the schedular criteria. Referral for extraschedular consideration is not warranted. The preponderance of the evidence is against this claim. The appeal in the matter must be denied. 2. A TDIU rating is denied. In his application for TDIU, the Veteran stated that his PTSD and colitis prevent him from securing or following any substantially gainful occupation. He stated that his disability affected full-time employment in April 2010, he became too disabled to work in April 2010, and he last worked full-time in August 2012. He stated that he did not leave his last job because of his disability. He reported having a high school education. A response to a request for employment information indicated that the Veteran was employed by Global Automotive from September 2010 to April 2012 in auto detail/lot management, and had lost 395 hours during the 12 months preceding his last date of employment due to disability. Regarding the reason for termination of employment, it was noted that the Veteran was out a lot due to stomach issues. On September 2014 VA mental diseases examination, the Veteran reported that he was unemployed and last worked in August 2012 at GW Broom Discount Auto Sales, where he was employed for one year; he lost the job when the business closed. He reported missing 10 to 12 days from work the last year that he worked due to mental health issues. He reported being irritable on the job and short with a co-worker and supervisors. He reported problems with concentration that slowed him down; and also that he was currently looking for work. Following a mental status examination, the diagnoses were PTSD and MDD. The examiner opined that the Veteran’s mental diagnoses caused occupational and social impairment with reduced reliability and productivity. On February 2016 VA intestinal conditions examination, the examiner opined that the Veteran’s intestinal condition impacts his ability to work. The Veteran reported that his conditions interfere with his ability to work because of the frequent need to use the restroom and his pain and fatigue that cause him to be unable to focus and complete a day of work. He reported that he frequently has to lie down to feel better. The examiner opined that, in terms of functional impairment, the Veteran was having a lot of diarrhea, rectal bleeding, and nausea/vomiting which were interfering with his day to day life. The examiner opined that while the Veteran could still work a desk job, he reported he was having to use the restroom so often that if would affect his ability to effectively complete tasks at work. On April 2017 VA examination, the examiner opined that the Veteran’s hemorrhoids impact his ability to work as far as sitting, the irritation, and using the restroom frequently; he was limited to sitting for 20 to 30 minutes at a time and standing for 15 to 20 minutes. A TDIU rating may be assigned when the veteran is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation due to service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). In evaluating a veteran’s employability, consideration may be given to the level of education, special training, and previous work experience, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The central inquiry is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability”. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Thus, the Board may not consider the effects of the Veteran’s nonservice- connected disabilities on his ability to function. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. The Veteran’s service connected disabilities include major depressive disorder, rated 50 percent; pan colitis (to include irritable bowel syndrome), rated 30 percent; hemorrhoids, rated 20 percent; and surgical scar, rated 0 percent; the combined disability rating is 70 percent. Because major depressive disorder is rated 50 percent and the combined disability rating is 70 percent, the schedular rating requirement for TDIU in 38 C.F.R. § 4.16(a) is met. The analysis turns to whether the Veteran’s service connected disabilities render him unemployable. He does not contend, and the evidence does not suggest, that his surgical scar impacts significantly on his employability. The Veteran has not worked full time during the period for consideration. However, this of itself does not establish that his service-connected disabilities render him unemployable. He reported that he lost his last job because the business closed (not due to disability). Although the September 2014 VA examiner opined that the Veteran’s major depressive disorder causes occupational impairment with reduced reliability and productivity; the February 2016 VA examiner opined that the Veteran’s irritable bowel syndrome and ulcerative colitis impact his ability to work because he reported having to use the restroom so often that if would affect his ability to effectively complete tasks at work; and the April 2017 VA examiner opined that the Veteran’s hemorrhoids impact his ability to work as far as sitting due to irritation, using the restroom frequently, limited sitting of 20 to 30 minutes and limited standing of 15 to 20 minutes; none of the examiners opined that the disabilities render him unemployable. The February 2016 VA examiner opined that, although the Veteran had to use the restroom frequently, he could still work a desk job. The disability picture presented reflects that the symptoms and impairment associated with the Veteran’s service-connected gastrointestinal disability would require accommodations; however, it does not appear that the accommodations needed (e.g., ready access to frequent use of a bathroom facility, and opportunity to stand in a sedentary job as needed to relieve discomfort) are unreasonable and could not be made. While such accommodations, along with the reduced reliability and productivity due to the service connected psychiatric disability may limit his employment opportunities, they are not shown to be such as to preclude all forms of substantially gainful employment. For example, it is not shown that due to his service-connected disabilities he would be precluded from participating in clerical work (consistent with a high school education) of a sedentary nature that would allow for ready access to bathroom facilities and does not require significant much interaction with fellow employees. His capability for work despite the service connected disabilities is supported by the fact that his last employment was terminated not due to disability, but because the employer went out of business. Indeed, by indicating to an examiner that he was looking for work, the Veteran himself acknowledged that he does not find employment infeasible. The overall record does not support a finding that due to service-connected disability, the Veteran is rendered unable to obtain and maintain substantially gainful employment consistent with his education and experience. The Board has considered the Veteran’s and his representative’s statements in support of the appeal, and acknowledges that he clearly has occupational impairment due to his service connected disabilities, and that such impairment limits his occupational opportunities, but is unable to find that at this time he is shown to be precluded from substantially gainful employment due to the service-connected disabilities. The preponderance of the evidence is against this claim. Accordingly, the appeal in the matter must be denied. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Schechner, Counsel