Citation Nr: 18152122 Decision Date: 11/21/18 Archive Date: 11/20/18 DOCKET NO. 07-20 826A DATE: November 21, 2018 ORDER Entitlement to a 100 percent disabling evaluation for Crohn’s disease, effective April 19, 2005, is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) is dismissed as moot. FINDINGS OF FACT 1. The evidence shows that the Veteran's Crohn’s disease is analogous to pronounced ulcerative colitis, resulting in general debility. 2. The Veteran is in receipt of a total schedular disability rating of 100 percent for Crohn’s disease for the entire appellate period beginning on April 19, 2005, and he was fully employed. CONCLUSIONS OF LAW 1. The criteria for a 100 percent evaluation for Crohn’s disease, effective April 19, 2005, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.114, Diagnostic Code 7323. 2. The appeal for entitlement to TDIU is moot and the claim is dismissed. 38 U.S.C. § 7105 (d)(5) (2012); 38 C.F.R. § 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military duty from September 1981 to November 1988. This matter was most recently before the Board of Veterans' Appeals (Board) in March 2017, when the Board assigned a 60 percent evaluation, and not higher, for the Veteran's Crohn’s disease, effective April 19, 2005. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). By order dated in April 2018, the Court granted a Joint Motion for Partial Remand. The case is now before the Board for final appellate consideration. INCREASED EVALUATION Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. There is no Diagnostic Code (DC) directly applicable to Crohn's disease. The Veteran's service-connected Crohn's disease is currently rated by analogy to DC 7323 (ulcerative colitis). 38 C.F.R. § 4.20. Under this DC, a 60 percent rating is warranted for severe symptoms with numerous attacks a year and malnutrition, with health only being fair when disease is in remission. A 100 percent rating is warranted for a pronounced condition, resulting in marked malnutrition, anemia, and general debility, or with serious complication as liver abscess. 38 C.F.R. § 4.114, DC 7323. The Joint Motion addresses the Board's March 2017 decision in detail, noting in pertinent part that the Veteran is not required to satisfy or check-mark the exact objective criteria of DC 7323 for ulcerative colitis because the Veteran’s Crohn’s disease is rated by analogy. The question before the Board is whether the Veteran's symptomatology is “pronounced”, warranting a 100 percent evaluation. The Board finds that it is. Turning to the evidence of record, a March 2006 private assessment included a history of ileocolonic fistula with ileal strictures. The Veteran was afforded a VA examination in August 2005. The report notes that the Veteran lost eight pounds in three months, going from 161 to 153 pounds. Right abdominal pain was noted. Nausea, diarrhea, alternating constipation and diarrhea and bloody stools were noted. Symptoms occurred as often as monthly, lasting as long as three to four days. The number of attacks in the prior year was 15. The Veteran was well nourished. The abdomen was tender. The examiner noted that there was no significant anemia and Crohn's disease did not cause malnutrition. Treatment records show that the Veteran underwent laparoscopic hand assisted ileal colectomy with ileocolonic anastomosis in 2006. Temporary total ratings were assigned for periods in 2006 and 2007. The Veteran was afforded a VA examination in September 2010. It was noted that over the past three years, the Veteran lost 20 pounds. His weight was 161 pounds. Crohn's disease was noted as causing nausea, vomiting, diarrhea, abdominal pain, eye problems, mouth sores, skin rash, joint pain, fatigue, loss of appetite and ulcers. There was no chronic constipation and alternating diarrhea and constipation. Diarrhea was noted. Right-sided abdominal pain was also noted. Symptoms include constant distress and cramps. It was noted that the Veteran misses time from work due to Crohn's disease. The Veteran was well nourished. There was no intestinal fistula on examination. There was tenderness to palpitation at the abdomen. Rectal examination was normal. Scar due to bowel resection was noted. The examiner stated that Crohn's disease does not cause malnutrition or anemia. The Veteran was afforded a VA examination in November 2011. Diarrhea occurring five to ten times per day was noted. Sometimes stools were described as bloody. Nausea and vomiting were also noted. Episodes of bowel disturbance with abdominal distress occurring more or less constantly were noted. There was no weight loss attributable to Crohn's disease. There was no malnutrition, serious complications or health effects attributable to Crohn's disease. Missed time from work due to Crohn's disease was noted. A May 2016 private Vocational Assessment observes that a March 2011 medical examination resulted in the opinion that the Veteran was likely to be absent more than four times a month. The Vocational Assessment relates the opinion that the Veteran was considered to be entitled to a 100 percent rating for total disability based on Individual Unemployability as of 2006, solely based on his Crohn’s disease and continuing symptoms and limitations. A private undated Residual Functional Capacity Questionnaire relates that the Veteran would need to take unscheduled breaks every couple of hours due to diarrhea. The breaks would last from 20-30 minutes. A September 2016 intestinal surgery Disability Benefits Questionnaire (DBQ) is of record. Resection of the small and large intestines was noted. There was no persistent fistula. Symptoms were daily diarrhea, occasional nausea and vomiting, fever, and fluctuations in weight. There was weight loss due to intestinal surgery. Baseline weight was 175 pounds and current weight was 162 pounds. Weight loss was sustained for at least three months. There was no interference with absorption and nutrition. Impairment of employment was noted as missed time due to Crohn's disease and frequent use of the bathroom. A September 2016 intestinal conditions DBQ is also of record. Chronic diarrhea was noted. Diarrhea is daily, while nausea, vomiting, and inability to hold leaks were noted as occasional. Anemia was not noted as a symptom. Frequent episodes of bowel disturbance with abdominal distress were noted. Exacerbations were described as pain in the right side with weight loss and fever. Seven or more exacerbations in the past 12 months were recorded. Weight loss from 175 pounds to 162 pounds was noted. There were no serious complications such as liver abscess. Malnutrition was not noted. Impairment of employment was noted as missed time due to Crohn's disease and frequent use of the bathroom. The examiner specifically indicated that the Veteran's Crohn’s disease resulted in “general debility,” rather than “health only fair during remissions.” The examiner also noted that the Veteran's symptoms included daily diarrhea, nausea sometimes, vomiting sometimes, fever and weight going up and down, and inability to hold leaks. Voluminous VA and private treatment records note symptoms largely congruent with the VA examinations and DBQs of record. Notably, those records describe loose stools and occasionally bloody stools. Some weight loss is also noted. Frequent need to use the bathroom is described, as is abdominal pain. In an undated statement received in August 2016, a manager at the United States Postal Service (USPS) relates that the Veteran had less than 35 hours of sick leave remaining. In comparison, a carrier with the Veteran's 17 years of employment would likely have over 1600 hours of sick leave. In another undated statement received in August 2016, the same manager notes that the Veteran must deviate from his route in order to go to the restroom during flare-ups. The manager had notified his staff not to harass the Veteran for his needed restroom breaks. Given the foregoing, the Board concludes that a 100 percent rating under DC 7323 is warranted from April 19, 2005 (the date of the Veteran's claim for an increased rating), forward. The Board acknowledges that the Veteran’s Crohn’s disease cannot be expected to meet the exact symptoms set forth in Diagnostic Code 7323 for ulcerative colitis. Nevertheless, the Board finds it significant that the October 2016 VA examiner chose “general debility” to describe the Veteran's Crohn’s disease, a symptom for a 100 percent evaluation, rather than “health only fair during remissions,” a symptom for a 60 percent evaluation. Addressing the Veteran's symptoms of Crohn’s disease the Board finds that that are “pronounced,” warranting a 100 percent evaluation under Diagnostic Code 7323. In this regard, the Board finds that the Veteran's extensive use of sick leave is significant. The Board also finds that “pronounced” disability is shown by the Veteran's daily diarrhea, nausea, vomiting, fever, fluctuating weight, occasional inability to hold leaks, loose and occasionally bloody stools, abdominal pain, and need to take unscheduled breaks every couple of hours lasting from 20-30 minutes due to diarrhea. The May 2016 private Vocational Assessment that the Veteran was entitled to a 100 percent rating for Individual Unemployability solely by his Crohn’s disease is also evidence that his Crohn’s disease is “pronounced.” The functional impairment related to the Crohn’s disease is such that the criteria for a 100 percent rating are more closely approximated for the entire appeal period. TDIU A claim for an increased rating can also include a claim for entitlement TDIU if raised by the record or the Veteran. See Rice v. Shinseki, 22 Vet. App. 447 (2009). To establish a total disability rating based on individual unemployability, there must be an impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. (Continued on the next page)   In this decision, the Board is granting a 100 percent rating for Chron’s disease for the entire appeal period. While an award of a 100 percent schedular rating does not necessarily render a claim for TDIU moot (see Bradley v. Peake, 22 Vet. App. 280 (2008)), the Board finds that the Veteran would not otherwise be entitled to TDIU for any period on appeal because he is still fully employed as a letter carrier for the United States Postal Service (USPS), with reasonable accommodations. See September 2016 Request for Employment Information in Connection with Claim for Disability Benefits. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Davitian, Counsel