Citation Nr: 18161232 Decision Date: 12/31/18 Archive Date: 12/31/18 DOCKET NO. 16-62 518 DATE: December 31, 2018 ORDER Entitlement to an evaluation in excess of 30 percent for Chron’s disease is denied. FINDING OF FACT The Veteran’s ulcerative colitis has not manifested in numerous attacks per year and malnutrition, the health only fair during remission. CONCLUSION OF LAW The criteria for an evaluation in excess of 30 percent for ulcerative colitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7323. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from February 1990 to February 1993. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision which denied service connection for a mental health condition to include anxiety, depression and memory loss and granted service connection for Crohn’s disease (claimed as ulcerative colitis) with an evaluation of 0 percent effective June 1, 2012. In October 2013, the Veteran filed a timely notice of disagreement (NOD) requesting service connection for the mental health condition and a higher rating for her service connected Crohn’s disease. In an August 2015 statement of the case, the regional office addressed the Veteran’s claim for service connection for a psychiatric condition. The Veteran did not file a timely substantive appeal of this issue. Thus, it is not on appeal. In the same month, and in lieu of a statement of the case, the regional office (RO) issued a second rating decision increasing the evaluation of the Veteran’s Crohn’s disease from 0 to 30 percent with the same effective date, June 1, 2012. In October 2015, the Veteran again filed an NOD requesting service connection for anxiety and depression, and an evaluation of at least 60 percent for Crohn’s disease. In addition, the Veteran noted that she wanted additional benefits for her dependents. The record reflects that the RO addressed the increased rating claim in a November 2016 statement of the case. According to the Veterans Appeals Control and Locator System (VACOLS), the Veteran perfected her appeal by submitting a VA Form 9 on December 17, 2016. However, the referenced VA Form 9 states that the Veteran wished to appeal only the denial of additional benefits for dependents. The Board notes that in January 2017, the Veteran’s dependent benefits were increased. In a July 2017 supplemental statement of the case, the RO addressed the Veteran’s increased rating claim for Crohn’s Disease, and continued the denial of an increase, but determined that the appropriate diagnostic code was 7319, governing irritable bowel syndrome, and not diagnostic code 7323, governing ulcerative colitis, which was the diagnostic code previously assigned to her condition. The Veteran submitted a statement disagreeing with the change in diagnostic code. In July 2018, the Veteran’s representative’s submitted an informal hearing presentation (IHP) on the issue of a higher initial evaluation for her service connected Crohn’s disease. The RO and the Board have treated the increased rating claim as being on appeal. See September 2017 Form 8; January 2018 BVA letter. The Board therefore accepts the increased rating claim for Crohn’s disease (claimed as ulcerative colitis) as properly in appellate status. See Percy v. Shinseki, 23 Vet. App. 37, 43-44 (2009). 1. Entitlement to an evaluation in excess of 30 percent for Crohn’s disease 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 (2012); 38 C.F.R. § 4.1 (2017). 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 (2017). 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 (2017); 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 (2017). 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 (2017). The Board notes that throughout the medical records, the Veteran’s symptoms are diagnosed and assessed as either ulcerative colitis or Crohn’s disease. The Veteran’s private physician, Dr. J. O., and his colleague suspected that the proper diagnosis was Crohn’s disease. The Board notes that Crohn’s disease does not have a specific diagnostic code, and thus, must be rated by analogy to another diagnostic code. 38 C.F.R. § 4.20. In reviewing the evidence and the relevant diagnostic codes, the Board finds that given the fact that the Veteran’s diagnosis was at times ulcerative colitis and given her symptoms, that the most appropriate diagnostic code to use for her Crohn’s disease is diagnostic code (DC) 7323 governing the evaluation of ulcerative colitis. Ulcerative colitis is rated under 38 C.F.R. § 4.114, DC 7323. Under this provision, a 60 percent rating is assigned for severe colitis: with numerous attacks a year and malnutrition, the health only fair during remissions. Id. The Veteran’s private treatment records indicate that her Crohn’s disease has been in clinical remission since May 2011. In May 2012, the Veteran reported being completely asymptomatic. In October 2012, the Veteran reported that she had had no exacerbations or status deteriorations since her last infusion of Remicade. The Veteran’s private treatment records show no flares between 2011 and 2014; and, in February 2014, Dr. J. O. opined that the disease was in deep remission. Further, throughout her private treatment records, the Veteran reported that she was doing well, her weight was stable, her appetite was normal and she was passing one formed stool a day. She denied any new concerns, abdominal pain, or blood or mucus in stools. In August 2013, the Veteran underwent a VA examination. The examination revealed that the most recent update from the Veteran’s gastroenterologist stated that the Veteran’s Crohn’s colitis had improved with IV steroids. The Veteran had recently been diagnosed with anemia which was thought to be due to her Crohn’s disease and she reported occasional episodes of bowel disturbance with abdominal distress. However, there were no symptoms of diarrhea, weight loss, malnutrition, or malignant neoplasm. The examiner opined that the Veteran’s intestinal condition did not impact her ability to work. August 2015 VA treatment records indicated that no weight loss, malnutrition or neoplasms were related to the Veteran’s diagnosis. The Veteran underwent a second VA examination in July 2017. The examiner noted that the Veteran suffered seven or more exacerbations in the preceding 12 months including recurrent episodes of 5 to 6 days of constipation, diarrhea symptoms of frequent liquid to loose stools of 2 days duration per month, daily bloating and distension and constant mouth sores. The Veteran contends that she is entitled to a higher rating based on a 2010 flare of her disease which left her hospitalized. However, the Veteran at no point reports that she suffered a colitis attack or flare after her effective date of June 1, 2012. Further, as noted above, there is no evidence in the treatment records to support this conclusion. She also cites the amount of time she spends traveling to treatment and her fear of another flare. However, the symptomology evidence by the record including frequent exacerbations and 2-day episodes of diarrhea is contemplated by the 30 percent rating. In summary, the preponderance of the evidence does not indicate that the Veteran has severe colitis with numerous attacks a year and malnutrition. See 38 C.F.R. § 4.114, DC 7323. Therefore, the claim for an increased rating for Crohn’s disease must be denied. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Sherman Associate Counsel