Citation Nr: 1823928 Decision Date: 04/20/18 Archive Date: 04/26/18 DOCKET NO. 15-03 454 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to a rating in excess of 40 percent disabling prior to February 7, 2017, and in excess of 60 percent disabling thereafter for service-connected ulcerative colitis with resection of the large intestine, status post laparoscopic and open total protocolectomy with J pouch ileoanal anastomosis, pouchitis, and diverting ileostomy. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service connected disabilities. 3. Entitlement to a compensable rating for service-connected residual scars, left, middle and right abdomen, status post laparoscopic surgery. 4. Entitlement to a rating in excess of 60 percent disabling for service-connected urge incontinence (also claimed as urinary incontinence). 5. Entitlement to a compensable rating for service-connected degenerative joint disease (DJD) (claimed as hip dysplasia) of the left hip with limitation of extension. 6. Entitlement to a compensable rating for service-connected DJD (claimed as hip dysplasia) of the right hip with limitation of extension. 7. Entitlement to a compensable rating for service-connected DJD (claimed as hip dysplasia) of the left hip with limitation of flexion. 8. Entitlement to a compensable rating for service-connected DJD (claimed as hip dysplasia) of the right hip with limitation of flexion. 9. Propriety of the reduction of the rating for service-connected DJD (claimed as hip dysplasia) of the left hip with limitation of abduction, from 20 percent disabling to 10 percent disabling effective April 19, 2017, and entitlement to an increased rating for such condition. 10. Propriety of the reduction of the rating for service-connected DJD (claimed as hip dysplasia) of the right hip with limitation of abduction, from 20 percent disabling to 10 percent disabling effective April 19, 2017, and entitlement to an increased rating for such condition. REPRESENTATION Veteran represented by: Robert V. Chisholm, Attorney ATTORNEY FOR THE BOARD J. Unger, Associate Counsel INTRODUCTION The Veteran served on active duty from January 21 to September 9, 1988 and from May 13 to August 5, 2003. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in December 2011, August 2012, and April 2017 by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Board notes that this case has a fairly lengthy and detailed procedural history. In a December 2011 Board decision, the Veteran was granted service connection for ulcerative colitis. The December 2011 rating decision effectuated this grant, assigned a 30 percent rating from September 26, 2006, a temporary total rating for surgery from December 7, 2006 to April 1, 2007, and a 40 percent rating as of April 1, 2007, for the recharacterized disability of resection of the large intestine status post laparoscopic and open total protocolectomy with J pouch ileoanal anastomosis and diverting ileostomy associated with ulcerative colitis. The August 2012 rating decision, inter alia, granted service connection for urge incontinence and assigned a 60 percent rating and denied TDIU. In an August 2015 decision, the Board denied the Veteran's claims for an increased rating for his ulcerative colitis and a TDIU, dismissed the Veteran's withdrawn claims for increased ratings for urge incontinence and hemorrhoids, and granted an earlier effective date for urge incontinence. A December 2015 rating decision effectuated the earlier effective date for the Veteran's service-connected urge incontinence. In the April 2017 rating decision, the RO increased the Veteran's rating for ulcerative colitis to 60 percent disabling, continued his 60 percent rating for urge incontinence, denied compensable ratings for the Veteran's service-connected DJD of his bilateral hips with limitation of extension and flexion and scars, not only denied the Veteran's claim for increased ratings for his service-connection DJD of his bilateral hips with limitation of abduction, but decreased his ratings for such, and again denied TDIU. In April 2017, the Veteran appealed the Board's August 2015 denial of his claims for an increased rating for ulcerative colitis and TDIU to the United States Court of Appeals for Veterans Claims (CAVC). In an April 2017 panel decision, CAVC set aside the Board's denials and remanded the claims back to the Board for further development and adjudication. The Board notes that while the April 2017 rating decision included the Veteran's claims for an increased rating for ulcerative colitis and TDIU, such were already on appeal and therefore are properly before the Board. Furthermore, while the April 2017 rating decision increased the Veteran's rating for ulcerative colitis, inasmuch as a higher rating is available for such, and the Veteran is presumed to seek the maximum available benefit for a disability, the claim for a higher rating has remained viable on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board notes that in the April 2017 rating decision, the RO, inter alia, continued his 60 percent rating for urge incontinence, and denied compensable ratings for service-connected scars and the Veteran's service-connected DJD of his bilateral hips with limitation of flexion and extension, and not only denied increased ratings for his service-connected bilateral hip DJD with limitation of abduction, but decreased his ratings for such. The Veteran expressed his disagreement in his May 2017 notice of disagreement. However as will be discussed in the remand portion below, the RO has not issued a statement of the case (SOC); therefore, the claims for increased ratings for urge incontinence and bilateral hip DJD with limitation of abduction, compensable ratings for the Veteran's service-connected bilateral hip DJD with limitation of extension and flexion and scars, and the propriety of the rating reductions for limitation of abduction in his bilateral hip DJD with limitation of abduction must be remanded in order to afford the Veteran a SOC on the claims. See Manlincon v. West, 12 Vet. App. 238 (1999). The issues of entitlement to increased ratings for service-connected urge incontinence and bilateral hip DJD with limitation of abduction, compensable ratings for service-connected scars and bilateral hip DJD with limitation of extension and flexion, the propriety of the reductions of the ratings for service-connected DJD with limitation of abduction, and an increased rating for service-connected ulcerative colitis are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT The Veteran is precluded from securing and following a substantially gainful occupation by reason of his service-connected disabilities, specifically ulcerative colitis, urge incontinence, and bilateral hip DJD. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.25, 4.26 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION As the Board's decision to grant a TDIU, herein constitutes a complete grant of the benefit sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations. The Board notes that it has reviewed all evidence of record. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim herein decided. A TDIU rating may be granted upon a showing that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 C.F.R. § 4.16 (a) (2017). There are minimum disability rating percentages that must be shown for the service-connected disabilities, alone or in combination, to even qualify for consideration for a TDIU award under § 4.16(a). Indeed, if there is only one such disability, it must be rated at 60 percent or more; if instead there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. For the above purpose of considering one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) Disabilities resulting from common etiology or a single accident, (3) Disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular- renal, neuropsychiatric, (4) Multiple injuries incurred in action, or (5) Multiple disabilities incurred as a prisoner of war. Id. The CAVC has indicated that the unemployability question, or the veteran's ability or inability to engage in substantial gainful activity, has to be looked at in a practical manner and that the crux of the matter rests upon whether a particular job is realistically within the capabilities, both physical and mental, of the appellant. See Moore v. Derwinski, 1 Vet. App. 356 (1991). Finally, marginal employment shall not be considered substantially gainful employment and generally shall be deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16 (a). The central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19 (2013); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran is service connected for the following disabilities: urge incontinence (claimed as urinary incontinence) associated with ulcerative colitis with resection of the large intestine, stats post laparoscopic and open total proctocolectomy with J pouch ileoanal anastomosis and diverting ileostomy (rated as 60 percent disabling from September 21, 2011); ulcerative colitis with resection of the large intestine, stats post laparoscopic and open total proctocolectomy with J pouch ileoanal anastomosis and diverting ileostomy (rated as 30 percent from September 26, 2006, 100 percent from December 7, 2006, 40 percent from April 1, 2007, and 60 percent from February 7, 2017); DJD (claimed as hip dysplasia) of the left hip with limitation of abduction associated with ulcerative colitis with resection of the large intestine, stats post laparoscopic and open total proctocolectomy with J pouch ileoanal anastomosis and diverting ileostomy (rated as 20 percent from October 30, 2014, and 10 percent from April 19, 2017); DJD (claimed as hip dysplasia) of the right hip with limitation of abduction associated with ulcerative colitis with resection of the large intestine, stats post laparoscopic and open total proctocolectomy with J pouch ileoanal anastomosis and diverting ileostomy (rated as 20 percent from October 30, 2014, and 10 percent from April 19, 2017); DJD (claimed as hip dysplasia) of the left hip with limitation of extension associated with ulcerative colitis with resection of the large intestine, stats post laparoscopic and open total proctocolectomy with J pouch ileoanal anastomosis and diverting ileostomy (rated as noncompensable from March 12, 2012); DJD (claimed as hip dysplasia) of the right hip with limitation of extension associated with ulcerative colitis with resection of the large intestine, stats post laparoscopic and open total proctocolectomy with J pouch ileoanal anastomosis and diverting ileostomy (rated as noncompensable from March 12, 2012); DJD (claimed as hip dysplasia) of the left hip with limitation of flexion associated with ulcerative colitis with resection of the large intestine, stats post laparoscopic and open total proctocolectomy with J pouch ileoanal anastomosis and diverting ileostomy (rated as noncompensable from October 30, 2014); ); DJD (claimed as hip dysplasia) of the right hip with limitation of flexion associated with ulcerative colitis with resection of the large intestine, stats post laparoscopic and open total proctocolectomy with J pouch ileoanal anastomosis and diverting ileostomy (rated as noncompensable from October 30, 2014); hemorrhoids associated with ulcerative colitis with resection of large intestine, status post laparoscopic and open total proctocolectomy with J pouch ileoanal anastomosis and diverting ileostomy (rated as noncompensable effective March 12, 2012); erectile dysfunction associated with ulcerative colitis with resection of large intestine, status post laparoscopic and open total proctocolectomy with J pouch ileoanal anastomosis and diverting ileostomy (rated as noncompensable effective March 12, 2012); and residual scars, left, middle, and right abdomen, status post laparoscopic surgery (rated as noncompensable effective February 7, 2017). Therefore, the Veteran has met the schedular criteria for a TDIU rating from September 21, 2011. See 38 C.F.R. § 4.16 (a). The Veteran's December 2012 application for a TDIU reported that he worked fulltime as a park ranger, a position he had held since 2007, and for which he made 32, 950 the prior year. He indicated that he was only able to maintain his job because of the many accommodations made by his employer, including being assigned only to duty stations near restrooms, not being required to remain at emergency scenes, and always having another ranger on call for him in case he needed to leave for medical reasons. He further indicated that about three times per month he got so sick that had to leave work and that another two or three times a month he was unable to go into work at all. He also stated that his employer was thinking of moving him to the night shift as he had been absent more than he had been at work due to medical appointments and illness. The record is replete with extensive evidence of the Veteran's service-connected disabilities. An October 2008 private physician statement indicated that the Veteran had loose stools and abdominal discomfort that made it difficult for him to stand or be away from a bathroom for prolonged periods of time. A September 2009 treatment note reflects the Veteran's reports of up to 10 bowel movements per day. During an April 2010 VA examination, the Veteran reported 6 to 10 bowel movements per day with occasional episodes of pouchitis. He reiterated such symptoms in an August 2010 statement, and added that during pouchitis episodes, he had 12 to 18 bowel movements per day, had to wear absorbent pads and change his underwear 3 to 5 times per day, and could not eat lunch at work for fear of soiling himself. During the April 2011 VA examination, the Veteran reported 6 to 10 bowel movements per day when feeling well and 16 to 20 during episodes of pouchitis, which lasted three to four days. He reported that he worked as a park ranger and spent most of his day in the car. He stated that he was only able to do that work because he had "bathrooms mapped out on his routes." He indicated that he needed to stay home from work when he had pouchitis. The examiner opined that the Veteran's monthly bouts of pouchitis "interfered with his work on many...occasions, making it difficult for him to perform his job." At a September 2011 Board hearing, the Veteran testified that he had 6 to 10 bowel movements per day and 10 to 20 during an episode of pouchitis. He stated that during pouchitis flare-ups he had watery diarrhea with urinary and fecal leakage, which required him to change his underwear two to three times per day. He also testified that he had to resign from his previous job as a highway patrolman due to ulcerative colitis. Regarding his job as a park ranger, he stated that he was able to work around his condition by knowing the location of every restroom in the park and by avoiding eating anything at work during pouchitis episodes. He stated that his condition prevented him from attending training lunches or doing any physical training exercises for fear of soiling himself. In an April 2012 statement, the Veteran reported recurring bouts of pouchitis that caused decreased sphincter control and increased bowel movements. During a July 2012 VA examination, the examiner opined that the Veteran's ulcerative colitis impacted his ability to work because he needed to use the bathroom frequently and had disabling abdominal pain during episodes of pouchitis. During a November 2012 examination, the Veteran reported that he had to take time off from his job as a park ranger whenever he had pouchitis, and he complained of abdominal cramping with excessive, bloody diarrhea two to three times per month; occasional vomiting; and pulling pain upon physical activity. A March 2013 employer letter confirmed the Veteran's December 2012 claims, and indicated that the Veteran had been switched to the night shift due to repeated absences for medical appointments. In addition, the employer indicated that he only assigned the Veteran to jobs near bathrooms. An October 2014 VA examination report reflects that the Veteran's service-connected bilateral hip problems impacted his ability to work by causing difficulty walking and bending. In March 2015, the Veteran submitted an employability assessment completed by a private vocational expert. The vocational expert noted that the Veteran required 10 to 15 bathroom breaks per workday, lasting around 20 minutes each, and that his employer gave him "full liberty" to take rest breaks as needed to use the bathroom, stop and stretch his hips, or lie down to restore his composure and energy. The vocational expert opined that the Veteran's work as a park ranger was "tantamount to a 'protected employment' situation" because "no typical employer can allow/accommodate a worker to take three and one third hours per workday/work shift for bathroom break purposes." He stated that it was reasonable for an employer to terminate an employee if "off task" work exceeds 45 to 60 minutes per workday and concluded that the Veteran's " need for bathroom/rest breaks renders him totally unemployable for any competitive occupation and that his present employment situation far exceeds the bounds of typical or normally-expected employer accommodation of a disabled worker." The vocational expert ultimately classified the Veteran's employment situation as an "unprecedented accomodation" that was "completely contingent upon the unprecedented beneficence" of his employer. In February 2017, the Veteran submitted a statement whereby he noted that he left his job as a park ranger in January 2017 due to his service-connected ulcerative colitis, urge incontinence, and bilateral hip disabilities. He submitted an additional statement in April 2017, whereby he clarified his prior statement indicating that he had not left his job in January 2017, but had given notice to his employer of his intent to resign. In April 2017, the Veteran underwent another VA examination. The Veteran reported that he had 8 to 11 bowel movements per day. He stated that he had abdominal cramping and discomfort and had to wear fecal incontinence pads all the time. He stated that he continued to suffer bouts of pouchitis worsened by coughing, sneezing or other increases in abdominal pressure. He further noted that anything he eats that is not entirely bland will increase his symptoms. The examiner found that the Veteran's condition would have a negative impact on manual/ambulatory work duties of walking, bending, stooping, lifting and/or carrying weighted objects, and stair climbing. However, the examiner found sedentary work would not be affected. In April 2017, the Veteran also underwent a VA hip and thigh conditions examination. The Veteran stated that his hips hurt, were stiff and constantly ached. He reported difficulty getting comfortable standing or lying down. He also stated that he had decreased flexibility and could no longer run or jog. The examiner found that the Veteran's condition would have an negative impact on work duties such as standing, walking, bending, stooping, walking on uneven or inclined surfaces, and climbing stairs. Furthermore, the examiner found that the Veteran's condition would have a negative impact on sedentary work due to immobility leading to increased soreness and stiffness. The evidence of record, including as discussed above, weighs both in favor and against the Veteran's TDIU claim. However, the Board affords great probative value to the March 2015 vocational expert's opinion which indicated that while the Veteran was employed, he was only able to maintain such as it was a "protected employment situation" as "no typical employer can allow/accommodate a worker to take three and one third hours per workday/work shift for bathroom break purposes." In addition, the Board finds no reason to question the veracity of the Veteran's allegations that he had to take numerous bathroom breaks throughout his shift, could not eat while at work, had to take numerous days off per month in order to deal with his service-connected conditions, and finally resigned from his job as a park ranger due to his conditions. Furthermore, the VA examiners throughout the appeal regularly noted that the Veteran's service-connected conditions would negatively impact his ability to perform physical labor, in addition the April 2017 examiner noted that the Veteran's service-connected hip conditions would negatively impact his ability to perform sedentary work. Therefore, the Board resolves all reasonable doubt in favor of the Veteran to determine that his service-connected disabilities, including his service-connected ulcerative colitis and bilateral hip DJD preclude him from following or maintaining a substantially gainful occupation. Thus, a TDIU rating is warranted, and the claim is granted. See 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER A TDIU is granted, subject to the laws and regulations governing the award of monetary benefits. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. As noted in the Introduction CAVC vacated and remanded part of the Board's August 2015 decision. CAVC found that the Board erred when it failed to consider the combined effects of the Veteran's multiple service-connected disabilities in accordance with Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). The Board finds that in light of the evidence of record, which indicates that the Veteran's post-surgery ulcerative colitis symptoms of loose stools and abdominal discomfort make it difficult for him to stand, and his service-connected bilateral hip disabilities impair his walking, but despite these difficulties, the best way for him to attain temporary relief from his symptoms is to "stand/walk about," that referral for consideration of an extraschedular evaluation for his service-connected post surgery ulcerative colitis is necessary in order to consider the collective impact of all of his service-connected disabilities. Finally, as noted in the Introduction, the April 2017 decision, inter alia, continued his 60 percent rating for urge incontinence, denied compensable ratings for the Veteran's service-connected scars and DJD of his bilateral hips with limitation of extension and flexion, and not only denied an increase for his limitation of abduction in his bilateral hips but decreased such ratings. Thereafter, in May 2017, the Veteran entered a notice of disagreement as to the claims therein decided. When there has been an initial AOJ adjudication of a claim and a notice of disagreement as to its denial, the claimant is entitled to a SOC. See 38 C.F.R. § 19.26. Thus, remand for issuance of a SOC on these issues is necessary. Manlincon, 12 Vet. App. at 238. However, these issues will be returned to the Board after issuance of the SOC only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with a SOC regarding the issues of increased rating for urge incontinence and bilateral hip DJD with limitation of abduction, compensable ratings for the Veteran's service-connected scars and DJD of his bilateral hips with limitation of extension and flexion, and the propriety of the reduction of the ratings for limitation of abduction in his bilateral hips. Advise the Veteran of the time period in which to perfect his appeal. If the Veteran perfects his appeal of these issues in a timely fashion, then return the case to the Board for its review, as appropriate. 2. Refer the Veteran's claim for an increased rating for service-connected ulcerative colitis with resection of the large intestine, status post laparoscopic and open total protocolectomy with J pouch ileoanal anastomosis, pouchitis, and diverting ileostomy to the Under Secretary for Benefits or the Director, Compensation Service, for extraschedular consideration pursuant to 38 C.F.R. § 3.321. Then readjudicate the Veteran's claim based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ L. M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs