Citation Nr: 18153456 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 13-22 271 DATE: November 27, 2018 ORDER Entitlement to an initial increased rating of 30 percent for hepatitis with irritable bowel syndrome, for the entire appeal period, and no earlier, is granted, subject to the laws and regulations governing the payment of monetary awards. FINDING OF FACT The probative evidence of record demonstrates that the Veteran’s service-connected hepatitis with irritable bowel syndrome is now manifested by alternating diarrhea and constipation with more or less constant abdominal stress for the entire appeal period. CONCLUSION OF LAW The criteria for an initial rating of 30 percent for hepatitis with irritable bowel syndrome are met from January 19, 2011. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. § 3.159, 3.321, 4.1, 4.3, 4.7, 4.114, DC 7319 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served honorably in the United States Marine Corps from March 1972 to March 1992, including service in the Republic of Vietnam and in the Southwest Asia Theater of Operations during the Persian Gulf War. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran first sought entitlement for service connection for hepatitis in February 1996. In an August 1996 rating decision, the RO granted entitlement to service connection with a noncompensable rating. This decision was not appealed; thus, it became final. In April 2004, the Veteran filed a claim for an increased rating for his service-connected hepatitis. The RO issued a September 2004 rating decision denying an award of a compensable rating. The Veteran timely appealed through a February 2005 notice of disagreement. The RO then issued a July 2005 statement of the case. The Veteran filed an August 2005 statement in support of claim, construed as a timely filed VA Form 9. In November 2006, the RO issued a supplemental statement of the case continuing the noncompensable rating for hepatitis. The Veteran filed another VA Form 9 in November 2006. The RO issued a second supplemental statement of the case in March 2007, and certified the Veteran’s appeal to the Board in a September 2007 VA Form 8. In the May 2009 Board decision, the Board granted entitlement to a 10 percent disability rating for hepatitis. This Board decision was not appealed; the decision is final. The Veteran filed a new claim for entitlement to service connection for irritable bowel syndrome (IBS) in January 2011. The RO issued a January 2012 rating decision granting entitlement to service connection for IBS and awarded a 10 percent disability rating effective January 19, 2011. The Veteran filed a timely May 2012 notice of disagreement. The RO issued a July 2013 statement of the case continuing the 10 percent rating. The Veteran timely filed an August 2013 VA Form 9, and the RO certified the Veteran’s appeal to the Board in an April 2014 VA Form 8. In the May 2015 Board decision, the Board remanded the claim to afford the Veteran an appropriate VA examination to determine the nature and severity of his service-connected IBS. VA provided a new examination and the RO issued an August 2015 supplemental statement of the case. In August 2017, the Board denied entitlement to an initial increased rating in excess of 10 percent for the Veteran’s service-connected IBS. The Veteran appealed the Board’s decision to the U.S. Court of Appeals for Veterans Claims (Court). A July 2018 Court Order granted the parties’ June 2018 Joint Motion for Remand. 1. Irritable Bowel Syndrome The Veteran contends his current symptomatology warrants a rating in excess of 10 percent for his service-connected hepatitis with IBS. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service connected disorder. 38 U.S.C. § 1155. The evaluation of a service-connected disorder requires a review of a veteran's entire medical history regarding that disorder. 38 U.S.C. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Evidence to be considered in an appeal from an initial disability rating was not limited to that reflecting the then current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson, 12 Vet. App. at 126-27; Hart v. Mansfield, 21 Vet. App. 505 (2007). Such separate disability ratings are known as staged ratings. The rating of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, that does not preclude the assignment of separate ratings for separate and distinct symptomatology where none of the symptomatology justify a rating under one diagnostic code is duplicative of or overlapping with the symptomatology justifying a rating under another diagnostic code. Estaban v. Brown, 6 Vet. App. 259 (1994). Here, the Veteran’s hepatitis with IBS is currently rated under Diagnostic Codes 7319-7345 at 10 percent disabling. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27, Diagnostic Code 7319. Ratings under diagnostic codes 7301 to 7329, inclusive, 7331, 8342, and 7345 to 7348 inclusive will not be combined with each other. 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. 38 C.F.R. § 4.114. Moreover, there are diseases of the digestive system, particularly within the abdomen, which, while differing in the site of pathology, produce a common disability picture characterized in the main by varying degrees of abdominal distress or pain, anemia and disturbances in nutrition. Consequently, certain coexisting diseases in this area, as indicated by the instructions under the title “Diseases of the Digestive System,” do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding, as outlined in 38 C.F.R. § 4.14. Under Diagnostic Code 7319, mild irritable colon syndrome, described as disturbances of bowel function with occasional episodes of abdominal distress, is awarded a noncompensable (0 percent) rating. Moderate irritable colon syndrome, described as frequent episodes of bowel disturbance with abdominal distress, is rated as 10 percent disabling. Severe irritable colon syndrome, described as diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress, is rated as 30 percent disabling. 38 C.F.R. § 4.114. Under Diagnostic Code 7345, which evaluates hepatitis, a 10-percent rating is assigned for intermittent fatigue, malaise, and anorexia, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least one week, but less than two weeks, during the past 12-month period. A 20-percent rating is assigned for daily fatigue, malaise, and anorexia (without weight loss or hepatomegaly), requiring dietary restriction or continuous medication, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least two weeks, but less than four weeks, during the past 12-month period. A 40-percent rating is assigned for daily fatigue, malaise, and anorexia, with minor weight loss and hepatomegaly, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least four weeks, but less than six weeks, during the past 12-month period. A 60-percent rating is assigned for daily fatigue, malaise, and anorexia, with substantial weight loss (or other indication of malnutrition), and hepatomegaly, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least six weeks during the past 12-month period, but not occurring constantly. A 100-percent rating is assigned for near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). 38 C.F.R. § 4.114, Diagnostic Code 7345. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Turning to the evidence of record, on January 19, 2011, the Veteran submitted an informal claim seeking entitlement to VA disability compensation benefits for IBS as presumptively related to his service in the Southwest Asia Theater of Operations during the Persian Gulf War, under 38 C.F.R. § 3.317. In a February 2011 statement from the Veteran’s wife, D.C., she states the Veteran has “bouts of constipation and also diarrhea which may hit with sudden urges to go to [the] bathroom that won’t wait for anything. It gets so bad, he has pains and explosive diarrhea all of a sudden with no warning.” In the June 2011 VA Gulf War Guideline examination, the examiner noted the Veteran reported he began having diarrhea when he was in the Gulf War and currently experienced it three to four times per week that would last all day, which would then be followed by several days of constipation. The Veteran denied blood in the bowel movements, weight loss, or changes in his appetite. The examiner found that the Veteran had irritable bowel syndrome with alternative diarrhea and constipation, with diarrhea predominating, and further found no aggravating or alleviating factors of the diarrhea. The VA examiner noted the Veteran’s current employment at a machine shop, where he had been employed since 1992, and also noted “[his] condition has not limited him in his ability to perform his occupational duties.” In the Veteran’s August 2013 VA Form 9, he wrote that his IBS affects him every day, and further stated he believed he had more or less constant abdominal distress as he experienced “pain when needing to go to the bathroom and having diarrhea without warning.” In a June 2015 VA examination, the examiner noted that the Veteran had diarrhea, described as loose stools, three to seven times a day for two to three days per week, which would then be followed by constipation for a couple days. However, the examiner indicated that the Veteran did not have episodes of bowel disturbance with abdominal distress, or exacerbations or attacks of the intestinal condition, nor did he have weight loss or malnutrition attributable to an intestinal condition. The examiner concluded that the Veteran’s intestinal condition did not impact his ability to work. The Board also must note that the Veteran’s treatment records, aside from the June 2011 VA examination and June 2015 VA examination, do not show the Veteran reported any symptoms of diarrhea, constipation, or abdominal distress. See September 2011 treatment record; November 2013 treatment record; April 2014 treatment record; June 2014 treatment record. As the Veteran’s predominant disability is IBS, his disability is most appropriately rated according to Diagnostic Code 7319. A maximum 30 percent rating is assignable under Diagnostic Code 7319 for severe symptoms; diarrhea or alternating diarrhea and constipation with constant abdominal distress. Thus, the pertinent inquiry is whether the Veteran’s symptoms are more consistent with a severe disability manifested by diarrhea, or alternating diarrhea and constipation with more or less constant abdominal distress, which warrants a 30 percent rating. The preponderance of the lay and medical evidence shows that the Veteran has experienced alternating diarrhea and constipation for the entire appeal period. As for his abdominal distress, the Board notes that the June 2015 VA examiner noted that the Veteran did not have episodes of bowel disturbance with abdominal distress, or exacerbations or attacks of the intestinal condition. However, the preponderance of the evidence shows the Veteran has claimed having abdominal pain, cramping, and senses of sudden urgency to use the bathroom for the entire appeal period, as he described having all of his symptoms on a daily basis. Therefore, after applying the approximating principles of 38 C.F.R. § 4.7 and resolving all reasonable doubt in favor of the Veteran, the Board finds that the lay and medical evidence of record shows that the Veteran’s service-connected hepatitis with IBS has been manifested by alternating episodes of constipation and diarrhea, with more or less constant abdominal distress, which more closely approximates the criteria for a severe disability. Accordingly, a 30 percent rating is granted for the entire appeal period. The Board has considered the applicability of other diagnostic codes for rating the Veteran’s current symptomatology, but has determined no other diagnostic codes are applicable to the Veteran’s disability picture. Finally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Ohlstein, Law Clerk