Citation Nr: 18153232 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 10-40 848A DATE: November 27, 2018 ORDER An initial rating of 60 percent, but no higher, prior to June 6, 2017, for pancreatitis is granted, subject to the regulations governing the payment of monetary awards. A rating in excess of 60 percent for pancreatitis from June 6, 2017, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) from October 30, 2008, is granted, subject to the regulations governing the payment of monetary awards. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran’s pancreatitis has been manifested by frequent attacks of abdominal pain which radiated to his back, loss of normal body weight, daily attacks of severe abdominal pain, and diarrhea. 2. From October 30, 2008, the evidence reflects that the Veteran’s service-connected disabilities were of such severity so as to preclude substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 60 percent, but no higher, for pancreatitis prior to June 6, 2017, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.114, Diagnostic Code (DC) 7347. 2. The criteria for a rating in excess of 60 percent from June 6, 2017, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.114, DC 7347. 3. The criteria for a TDIU effective October 30, 2008, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1965 to September 1967. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a June 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A hearing was held before a Veterans Law Judge (VLJ) in October 2016, a transcript of which is of record. That VLJ is not available to adjudicate these matters and in May 2018, the VA asked the Veteran if he wished to have another hearing. He responded that he did not wish to appear at another Board hearing in May 2018. In August 2010, a Decision Review Officer (DRO) decision increased the Veteran’s pancreatitis rating to 30 percent, effective the initial date of award of service connection. These matters were then remanded by the Board in April 2017 for additional development. In a June 2017 rating decision, following the Board-directed development, the Veteran’s pancreatitis rating was increased to 60 percent, effective June 6, 2017. As neither increase reflects a full grant of the benefits sought, the rating assigned for pancreatitis is still on appeal herein. 1. Entitlement to an initial rating in excess of 30 percent for pancreatitis, and in excess of 60 percent from June 6, 2017 The Veteran contends that he is entitled to an initial rating in excess of 30 percent prior to June 6, 2017, and a rating in excess of 60 percent thereafter. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule). Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 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. See 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Where, as here, the Veteran has expressed dissatisfaction with the assignment of an initial rating, VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim-a practice known as “staged rating.” See Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). The Veteran’s service-connected pancreatitis has been assigned a 30 percent disability rating, under 38 C.F.R. § 4.114, DC 7347, prior to June 6, 2017, and 60 percent thereafter. Under DC 7347 for pancreatitis, a 30 percent rating applies to moderately severe pancreatitis with at least 4 to 7 typical attacks of abdominal pain per year with good remission between attacks. A 60 percent rating applies to pancreatitis with frequent attacks of abdominal pain, loss of normal body weight, and other findings showing continuing pancreatic insufficiency between acute attacks. A 100 percent rating applies to pancreatitis with frequently recurrent disabling attacks of abdominal pain with few pain-free intermissions and with steatorrhea, malabsorption, diarrhea, and severe malnutrition. Per Note 2, following total or partial pancreatectomy, rate under above, symptoms, minimum rating 30 percent. 38 C.F.R. § 4.114, DC 7347. After carefully reviewing the record, the Board finds the evidence reflects a disability rating of 60 percent is warranted prior to June 6, 2017; but a preponderance of the evidence is against a finding of entitlement to a rating in excess of 60 percent at any time during the appeal period for the Veteran’s pancreatitis. Historically, April 2006 private treatment records reflect evaluation of the Veteran’s pancreatitis, with complaints of abdominal pain that radiated to the back. March 2007 private treatment records show an exacerbation of chronic pancreatitis with constant, daily, sharp pain throughout his abdomen, which radiates through his back. Additional private treatment records from March 2007 reflect complaints of severe abdominal pain that radiates to the back and is not controlled by prescribed pain management. Dr. M.S. noted a 20-pound weight loss that was likely due to the Veteran’s chronic pancreatitis. In May 2007, the Veteran underwent surgery to relieve the symptoms of his pancreatitis, which included a Roux-en-Y pancreaticojejunostomy. Importantly, the Veteran did not have a partial or total pancreatectomy. A March 2009 VA examination reflected pancreatitis as a result of diabetes mellitus type II, which results in abdominal pain. The Veteran submitted private treatment notes from Dr. H.M. and Dr. B.R. in August 2009 which reflected daily chronic pain with 1 to 2 exacerbation episodes each day. He required chronic analgesics to help manage the pain. Private treatment records throughout 2010 reflect almost an 80-pound weight loss. The Veteran’s disability picture includes a diagnosis of diabetes mellitus type II, for which some weight loss was prescribed in order to manage that disability. Specifically, in July 2010, Dr. E.W. noted that the Veteran’s weight has fluctuated a great deal. The Veteran complained of vague symptoms of not feeling well, to include intermittent nausea with decreased appetite. In September 2010, the Veteran complained of chronic diarrhea and weight loss. In his September 2010 VA Form 9, the Veteran reported a 30-pound weight loss over the preceding two years. He also reported being in constant pain and experiencing 3 to 4 attacks of abdominal pain per day. He reported being on daily pain medication for the pain and having to carry the medication with him at all times to manage any attacks of pain. He estimated that he experienced on incapacitating episode a week that put him down for at least an hour until the pain medication took effect. On January 2012 VA examination, the VA examiner noted symptoms of chronic pancreatitis with pain that is between 5 and 10 out of 10, which worsens with any type of food. The Veteran was provided another VA examination in April 2014. The VA examiner noted chronic abdominal pain and nausea, requiring suboxone for the pain, and intermittent diarrhea. Symptoms noted include abdominal pain with severe, disabling attacks of 8 or more in the past twelve months. At the October 2016 Board hearing, the Veteran testified that his chronic pancreatitis was worse than the 30 percent assigned and that the medical evidence supports that. Another VA examination of June 2017 reflects severe, disabling attacks of abdominal pain, 8 or more times in the past twelve months and a loss of normal body weight by approximately 50 pounds. Prior to June 6, 2017, the Veteran is in receipt of an initial 30 percent rating for his pancreatitis. In order to warrant a 60 percent rating, the evidence must reflect pancreatitis with frequent attacks of abdominal pain, loss of normal body weight, and other findings showing continuing pancreatic insufficiency between acute attacks. The Board finds that the medical evidence of record most nearly approximates that the Veteran had frequent attacks of abdominal pain, experienced loss of normal body weight, stomach pain, and diarrhea throughout the appeal period prior to June 6, 2017. Specifically, the private treatment notes reflect the Veteran had surgery to relieve the symptoms of his pancreatitis in May 2007. August 2009 private treatment notes from Dr. H.M. and Dr. B.R. reflected daily chronic pain with 1 to 2 exacerbation episodes each day. A July 2010 private treatment note indicates that the Veteran’s weight has fluctuated a great deal and a September 2010 private treatment note reflects complaints of diarrhea and weight loss. Statements from the Veteran, including in his September 2010 VA Form 9, have asserted that he experiences pain in his abdomen, with frequent attacks, requiring constant use of pain management medication. In the January 2012 VA examination, the Veteran reported constant abdominal pain of 5 to 10 out of 10 that worsens with all food. At the April 2014 VA examination, the VA examiner noted that the Veteran experienced chronic abdominal pain and nausea, requiring suboxone for the pain, and intermittent diarrhea. Symptoms noted include abdominal pain with severe, disabling attacks of 8 or more in the past twelve months. The Board finds that the medical evidence of record reflects that the Veteran experiences frequent attacks of abdominal pain, to the extent that a private physician has indicated that the Veteran has an attack of abdominal pain at least once a day. The Veteran has also experienced weight loss as evidenced in the private treatment notes. While the Veteran was prescribed to lose weight to help manage his diabetes mellitus type II, his treating physicians have indicated throughout the record that weight loss is likely related to his pancreatitis. Finally, the Veteran has consistently complained of intense abdominal pain which radiates to his back and that he has bouts of diarrhea. In addition, while the Veteran did not have a partial or total pancreatectomy, he did undergo surgery in May 2007 for the purpose of relieving the symptoms of his pancreatitis. As such, the Board finds an initial rating of 60 percent is warranted for the Veteran’s pancreatitis prior to June 6, 2017. In light of this grant of 60 percent, the Veteran is rated at 60 percent for the entire period on appeal and the final analysis will be whether the Veteran is entitled to an initial rating in excess of 60 percent at any point during the appellate period. A 100 percent rating is warranted for pancreatitis if manifested by frequently recurrent disabling attacks of abdominal pain with few pain-free intermissions and with steatorrhea, malabsorption, diarrhea, and severe malnutrition. While the medical evidence reflects the Veteran has severe attacks of abdominal pain, at least once a day, and diarrhea, the evidence does not reflect that he has experienced steatorrhea, malabsorption, or severe malnutrition during the appellate period. For example, the June 2017 VA examination reflects that the Veteran suffers from severe disabling attacks of abdominal pain, however, the VA examiner did not note that the Veteran had steatorrhea, malabsorption, or severe malnutrition. The private treatment records also do not reflect these signs or symptoms. As such, the preponderance of the evidence is against a finding that the signs and symptoms of the Veteran’s pancreatitis more nearly approximate the criteria for a higher 100 percent rating. In summary, the Board concludes the Veteran is entitled to a higher 60 percent rating for the appeal period prior to June 6, 2017; however, a rating in excess of 60 percent at any point during the appellate period is not warranted; therefore, to that extent, the claim is denied. 2. Entitlement to a TDIU prior to October 10, 2013 The Veteran was granted entitlement to a TDIU, effective October 10, 2013, in a July 2014 rating decision. In an April 2017 VA Form 21-4138, Statement in Support of Claim, the Veteran argued that he was entitled to a TDIU, effective October 30, 2008, in conjunction with his claim for an increased rating for pancreatitis. In light of the above determination to increase the initial rating for pancreatitis to 60 percent, effective October 30, 2008, the Board finds that the Veteran’s claim for entitlement to a TDIU prior to October 10, 2013 is warranted, effective October 30, 2008, the date on which the Veteran meets the schedular requirement for a TDIU. 38 C.F.R. § 4.16(a). TDIU may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow substantially gainful occupation as a result of service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The regulations further provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran filed his first VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, in April 2007. In a June 2009 rating decision, the Veteran was granted service connection for diabetes mellitus type II, pancreatitis, peripheral neuropathy of the bilateral lower extremities, and erectile dysfunction, effective October 30, 2008. In light of the increased rating grant above, as of October 30, 2008, the Veteran was service connected for diabetes mellitus type II, rated at 20 percent, pancreatitis, rated at 60 percent, peripheral neuropathy of the left lower extremity, rated at 10 percent, and peripheral neuropathy of the right lower extremity, rated at 10 percent. The combined rating was 70 percent from October 30, 2008, and the Veteran met the schedular requirements at that time. The record reflects the Veteran has been receiving disability benefits from the Social Security Administration since August 2007 based, at least in part, on his pancreatitis. In his September 2010 VA Form 9, the Veteran reported that because of his pancreatitis, he is unable to do anything. He reported being “all shaken” and spending most of the day around the house doing little things. He indicated he was unable to work because of his pancreatitis. On April 2014 VA examination, the examiner indicated that with current medication and possible side effects, the Veteran should avoid operating heavy machinery, as the medication can cause drowsiness. The examiner also indicated that chronic pain would interrupt the work day and decrease the Veteran’s productivity and that his pain inhibited his ability to work. As explained in the decision above regarding the increased rating for pancreatitis, the record reflects the Veteran has been taking the same medication throughout the appeal period on a constant basis to treat pain from pancreatitis. As such, and since he now meets the schedular criteria per 38 C.F.R. § 4.16, the Board finds he is entitled to a TDIU, effective October 30, 2008. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD LM Stallings, Associate Counsel