Citation Nr: 18106971 Decision Date: 06/01/18 Archive Date: 05/31/18 DOCKET NO. 15-08 806 DATE: June 1, 2018 REMANDED Entitlement to a disability rating in excess of 30 percent for Crohn's disease is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1983 to August 1990. Entitlement to a disability rating in excess of 30 percent for Crohn's disease is remanded. The Agency of Original Jurisdiction (AOJ) granted service-connected compensation for the Veteran’s Crohn’s disease in October 2009, assigning an initial rating of 30 percent. In April 2013, the Veteran filed a statement, claiming that symptoms of Crohn’s disease had increased in severity. To help decide whether he was eligible for an increased rating, the AOJ arranged a VA examination in August 2013. Based on the findings of the August 2013 VA examiner, the AOJ denied a rating higher than 30 percent. For at least two reasons, further development is needed before the Board can decide whether that ruling was correct. First, the Veteran submitted a notice of disagreement in January 2014 and a substantive appeal (VA Form 9) in February 2015, both of which claim that the symptoms of Crohn’s disease had increased in severity. When a Veteran claims that a service-connected disability is worse than when originally rated VA must provide a new examination. See Olson v. Principi, 3 Vet. App. 480, 482 (1992). Secondly, the Veteran argues that a higher rating is needed because he requires medication to control his Crohn’s disease. He has also criticized the AOJ for using 38 C.F.R. § 4.114, Diagnostic Codes (DCs) 7399-7323 (ulcerative colitis) to rate his disability. Since there is no diagnostic code specifically written to evaluate Crohn’s disease, it is not clearly wrong to use a hyphenated diagnostic code under the “99” series to rate the disease by analogy. 38 C.F.R. § 4.27. The Veteran’s argument about the effects of medication, however, raises a potentially significant concern which will require a new examination and medical opinion. Moreover, the August 2013 VA examiner agreed that the Veteran’s Crohn’s disease required continuous medication. When considering a claim for an increased disability rating, the Board must not consider the ameliorative effects of medication unless those effects are explicitly contemplated by the relevant rating criteria. See Jones v. Shinseki, 26 Vet. App. 56, 61 (2012). Diagnostic Code 7323 does not mention the effects of medication. In light of Jones, the Veteran’s statement raises the issue of whether, if the Veteran did not use medication to control his Crohn’s disease, his symptoms would more closely approximate the criteria for a higher 60 percent rating under DC 7323 – i.e. severe symptoms, with numerous attacks a year and malnutrition, with health only fair during periods of remission. On remand, the AOJ should arrange a new examination and request an opinion from the examiner asking him or her to attempt to describe whether, in the absence of medication, the Veteran’s Crohn’s disease would approximate the criteria for a higher rating under DC 7323. The matter is REMANDED for the following action: 1. Contact the Veteran and invite him to submit any additional evidence concerning the severity of his service-connected Crohn’s disease since March 2013. 2. Schedule the Veteran for an examination with a qualified medical professional to determine the current severity of his service-connected Crohn’s disease. The entire claims file must be made available to and be reviewed by the examiner, and it must be confirmed that such records were available for review. All indicated evaluations, studies, and tests should be accomplished and all findings reported in detail. In his or her report on the severity of the Veteran's Crohn’s disease, the examiner should provide an opinion on the question of whether it is at least as likely as not (50 percent probability or more) that, if the Veteran were not taking medication to control the symptoms of his Crohn’s disease, his symptoms would most closely approximate the criteria for higher ratings of 60 percent – i.e., numerous attacks a year and malnutrition, with health being fair only during remissions – or 100 percent – i.e., marked malnutrition, anemia, and general debility, or with serious complication such as liver abcess. If the examiner is unable to provide the requested opinion, it is essential that he or she explain the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. The AOJ must ensure that the requested examination report and medical opinion are in compliance with the directives of this remand. If any report is deficient in any manner, the AOJ must implement corrective procedures at once. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Nye, Associate Counsel