Citation Nr: 18151011 Decision Date: 11/19/18 Archive Date: 11/16/18 DOCKET NO. 14-25 787 DATE: November 19, 2018 ORDER Entitlement to an initial rating in excess of 30 percent on an extraschedular basis for ulcerative colitis for the period prior to January 24, 2013, is denied. Entitlement to an initial rating in excess of 60 percent on an extraschedular basis for ulcerative colitis for the period beginning March 1, 2013, is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. For the period prior to January 24, 2013, the Veteran’s ulcerative colitis does not present such an exceptional or unusual disability picture that the available schedular evaluations are inadequate. 2. For the period beginning March 1, 2013, the Veteran’s ulcerative colitis does not warrant a rating in excess of 60 percent on an extraschedular basis to accord justice. CONCLUSIONS OF LAW 1. The criteria for an extraschedular rating for ulcerative colitis have not been met for the period prior to January 24, 2013. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.40, 4.45, 4.114, Diagnostic Code (DC) 7323 (2017). 2. The criteria for a rating in excess of 60 percent on a extraschedular basis for ulcerative colitis have not been met for the period beginning March 1, 2013. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1999 to August 2005. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This claim was previously before the Board in April 2018. The Board denied entitlement to an evaluation in excess of 30 percent on a schedular basis, and remanded entitlement to an extraschedular evaluation. The claim was referred to the Director, Compensation Service. In a May 2018 memorandum, the Director stated that an increase to 60 percent disabling for the Veteran’s ulcerative colitis should be granted. In an August 2018 rating decision, the RO granted an increase to 60 percent based on extraschedular entitlement, effective March 1, 2013. This case is again before the Board. Of note, throughout the appeal process the Veteran has received several temporary ratings of 100 percent disabling after surgery. He is seeking a 100 percent evaluation for the entire period dating back to December 27, 2011. Increased Ratings Disability ratings are determined by applying the criteria set forth in the 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. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999). Period prior to January 24, 2013 For this period, the Veteran’s ulcerative colitis is evaluated as 30 percent disabling on a schedular basis. The Board finds that the preponderance evidence is against assigning a rating in excess of 30 percent on an extraschedular basis. In determining whether a extraschedular evaluation is warranted, the Board must first consider whether there is an exceptional or unusual disability picture, which occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a Veteran’s service-connected disability. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). The Board finds that prior to January 24, 2013, the Veteran’s symptoms do not constitute an exceptional or unusual disability picture. The schedule for rating for the digestive system states that ratings under diagnostic codes 7301 to 7329, inclusive 7331, 7342, and 7345 to 7348 inclusive will not be combined with each other. 38 C.F.R. § 4.114. A single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with evaluation to the next higher evaluation where the severity of the overall disability warrants such evaluation. Id. The Veteran’s disability, identified as ulcerative colitis, is rated under 38 C.F.R. § 4.114, Diagnostic Code 7323. A 30 percent rating is warranted for moderately severe ulcerative colitis with frequent exacerbations. The schedular criteria for the digestive system contemplates a variety of symptoms, to include abdominal pain, diarrhea, constipation, weakness, malaise, anemia, malnutrition, gaseous distension, cramps, and nausea. 38 C.F.R. § 4.114, DCs 7306-7329. The March 2012 VA examiner found that the Veteran had symptoms of diarrhea, alternating diarrhea and constipation, abdominal distension, anemia, and nausea. The examiner stated that that the Veteran had frequent episodes of bowel disturbance with abdominal distress. The examiner found the Veteran did not have weight loss or malnutrition. The Veteran’s treating records prior to January 24, 2013, show symptoms of diarrhea, frequent bowel movements, and weight loss. The schedule of ratings for the digestive system adequately considers and compensates for Veteran’s symptoms, as identified above. In conclusion, the schedular criteria are adequate to rate the Veteran’s service-connected ulcerative colitis for the period prior to January 24, 2013. The preponderance of the evidence is against assigning a higher rating on an extraschedular basis. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Of note, the Veteran has a 100 percent temporary evaluation from January 24, 2013 through February 28, 2013. Period beginning March 1, 2013 For this period, the RO granted an increase to 60 percent disabling on an extraschedular basis. The Board finds the preponderance of the evidence is against assigning a rating in excess of 60 percent on an extraschedular basis. Where the schedular evaluations are found to be inadequate, the Director of Compensation, is authorized to approve an extraschedular evaluation to accord justice. 38 C.F.R. § 3.321. In this case, the Director approved an increase to 60 percent disabling on an extraschedular basis for the Veteran’s ulcerative colitis. The RO then granted an increase to 60 percent disabling on an extraschedular basis beginning March 1, 2013. The Board finds that a rating in excess of 60 percent is not warranted to accord justice for the Veteran’s disability picture. The Veteran had a colectomy with an end ileostomy preformed in January 2013, and was awarded a temporary 100 percent evaluation following the surgery until March 1, 2013. Post surgery, the Veteran reported he was doing better. He denied abdominal cramping and pain and endorsed eating well. In May 2013, the Veteran has a proctocolectomy with a J-pouch. In August 2013, he had his ileostomy reversed. Following both of these surgeries, the Veteran was awarded a temporary 100 percent rating. In May 2014, the Veteran was admitted to a hospital with abdominal pain and inability to pass flatus. The Veteran had surgery for a small bowel obstruction in June 2014. In May 2015, the Veteran was admitted to general surgery with rectal pain, persistent diarrhea, and hematochezia. The Veteran also reported tailbone pain, increased frequency of bowel movements, and incomplete evacuation. A colonoscopy revealed severe inflammation and edema of the anus to the anastomosis. The Veteran was diagnosed with Pouchitis Giardiasis and was treated with antibiotics and counseled on continuing a gluten free diet. He endorsed improvement on discharge, but he continued to report a small amount of blood in the stool and constipation. The Veteran continued treatment for ulcerative colitis at a VA medical center. In October 2015, he reported one flare of abdominal pain since his July 2015 visit. A January 2016 treatment note indicates he continued to report intermittent abdominal pain and diarrhea a few times a month. In February 2016, he reported he was doing okay, but experienced fatigue and 3 to 5 bowel movements daily with no blood and no recurrence of Pouchitis. At a follow-up visit in August 2016, he reported no blood in the stool, and some abdominal discomfort, which was possibly attributed to a recurrence of a hernia. Of note, in 2015, the Veteran developed a ventral incisional hernia at his prior ostomy site. This was repaired in in 2015 with a recurrence in June 2016, July 2017, and April 2018. In February 2017 the Veteran reported abdominal cramping and bloating with nausea and diarrhea. In August 2017, he reported three bowel movements on a good day, and 6-7 on a bad day. In July 2018, the Veteran reported continued poor appetite but with generally stable weight. The Veteran attended a January 2018 VA examination for his ulcerative colitis. The Veteran reported several bowel obstructions and several infections over the years. He stated he has no appetite and is afraid to eat because of the possibility of having another obstruction. He reported a constant level of pain of 5/10 and 5 to 10 bowel movements a day, with bouts of diarrhea and nausea. The examiner identified symptoms of diarrhea, abdominal distention, nausea, with frequent episodes of bowel disturbance. The examiner found the Veteran did not exhibit weight loss or malnutrition. As detailed above, the Veteran’s ulcerative colitis required three surgeries in 2013. However, the Veteran was awarded 100 percent temporary ratings following these surgeries, which compensates for total impairment during recovery. The Veteran has stated that he is afraid of having another bowel obstruction. Based on the evidence above, the Veteran’s last bowel obstruction was in May 2014. He was again awarded a 100 percent temporary rating following the surgery. The Veteran has not experienced another bowel obstruction, nor has he required surgery for his ulcerative colitis since May 2014. The Veteran was last hospitalized for ulcerative colitis for 4 days in May 2015. In between the surgeries and hospitalization, the Veteran reported feeling better, though with continuing symptoms of pain and diarrhea. As noted in the medical evidence detailed above, the Veteran has consistently reported pain, diarrhea, and poor appetite throughout the period at issue. The Board finds that the 60 percent disability evaluation in combination with the temporary total ratings accord justice to the Veteran’s disability picture. The Board notes the Veteran has had several additional surgeries since 2015 for his hernia condition. Service-connection has been granted for his hernia condition and associated scars. As such, the Veteran’s symptoms relating to his hernia have been separately evaluated and are not currently before the Board. In this case, the Veteran was denied a schedular rating in excess of 30 percent because he did not meet the requirement for malnutrition. However, the Veteran did exhibit numerous attacks a year, which is a component of the 60 percent schedular rating. In addition, he exhibited anemia on some occasions, which is a symptom listed in the 100 percent schedular rating. However, the Veteran did not have marked malnutrition, general debility, or serious complications such as a liver abcess, which are the additional symptoms required for a 100 percent schedular rating. As such, the 60 percent extraschedular rating accords justice to the Veteran’s disability picture as it acknowledges that the Veteran has some of the symptoms required for a rating in excess of 30 percent, but not all the symptoms required for a higher schedular rating. A rating in excess of 60 percent is not warranted as the Veteran’s has not exhibited significant weight loss, malnutrition, hemorrhage, or serious complications such as liver abscess or colostomy. The Veteran’s symptoms in-between his surgeries and since May 2015 have been primarily pain, diarrhea, loss of appetite, nausea, and constipation. These symptoms are accounted for in the schedular criteria for the digestive system at ratings of 60 percent or less. As such, a higher rating is not warranted to accord justice for the Veteran’s disability picture. The Veteran has consistently reported that he is unable to work due to his ulcerative colitis. As such, the issue of entitlement to a TDIU has been raised. Rice v. Shinseki, 22 Vet. App. 447 (2009). As detailed below, this issue has been remanded to the RO for further development. Accordingly, the Veteran’s occupational impairment due to his ulcerative colitis is covered by this claim, and will be evaluated by the RO on remand. Considering the evidence above, a 60 percent extraschedular rating accords justice to the Veteran for his ulcerative colitis symptoms and resulting impairment. The preponderance of the evidence is against awarding a rating in excess of 60 percent on a extraschedular basis. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND The issue of entitlement to a TDIU has been raised by the record. However, there is no VA Form 21-8940, Veteran’s Application for Increased Compensation Based Unemployability of record, nor has this issue been addressed by the RO. Additional development is required regarding the Veteran’s previous employment and education level. On remand, the RO must request that the Veteran complete this form and adjudicate the issue of entitlement to a TDIU. (CONTINUED ON NEXT PAGE)   The matter is REMANDED for the following action: 1. Request that the Veteran complete a formal TDIU application form (VA Form 21-8940). 2. Adjudicate the issue of entitlement to a TDIU. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Norah Patrick, Associate Counsel