Citation Nr: 19181908 Decision Date: 10/29/19 Archive Date: 10/29/19 DOCKET NO. 15-31 279A DATE: October 29, 2019 ORDER A disability rating in excess of 30 percent for ulcerative colitis with large intestine resection, status post proctocolectomy and temporary ileostomy, [hereinafter colitis] is denied. FINDING OF FACT The Veteran’s service-connected ulcerative colitis is not more nearly manifested by symptoms of severe ulcerative colitis with numerous attacks per year and malnutrition with health only fair during remissions. CONCLUSION OF LAW The criteria for a disability rating 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 7399-7323. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1985 to December 1989, from January 1991 to March 1991, and from October 2001 to May 2002. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2018, the Board of Veterans’ Appeals remanded the issue of entitlement to a rating in excess of 30 percent for colitis to obtain current VA treatment records. Those records were associated with the claims file in February 2019. There has been substantial compliance with the remand directives. Dyment v. West, 13 Vet. App. 141 (1999). Entitlement to a disability rating in excess of 30 percent for ulcerative colitis. The Veteran contends that a higher rating is warranted due to large intestine resection and frequent bowel movements. The issue in this appeal is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating in excess of 30 percent. The Board concludes that the Veteran’s symptoms did not cause the level of impairment required for a disability rating of in excess of 30 percent. Neither the lay nor the medical evidence of record more nearly reflect that ulcerative colitis is manifested by severe symptoms with numerous attacks per year and malnutrition with health only fair during remissions. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7399-7323. Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. A disability may require re-evaluation in accordance with changes in a veteran’s condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. The Veteran’s disability is currently rated at 30 percent under Diagnostic Code 7399-7323. 38 C.F.R. § 4.114, Diagnostic Code 7323. Hyphenated 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; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Diagnostic Code 7323 provides a 30 percent disability rating for moderately-severe ulcerative colitis characterized by frequent exacerbations. A 60 percent disability rating is warranted for severe ulcerative colitis characterized by numerous attacks per year and malnutrition, with the residual health assessed as fair during remissions. A 100 percent disability rating is warranted for pronounced ulcerative colitis characterized by marked malnutrition, anemia, and general debility, or with serious complication such as liver abscess. 38 U.S.C. § 4.114, Diagnostic Code7323. The words “mild,” “moderate,” and “severe” are not defined in the VA Schedule for Ratings Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. It should also be noted that use of such terminology by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The rating schedule provides that ratings under Codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 inclusive, will not be combined with each other. A single evaluation will be assigned under the Code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such evaluation. 38 C.F.R. § § 4.114. VA and private treatment records, the January 2014 and November 2017 VA examinations, and the Veteran’s lay statements show that the Veteran’s ulcerative colitis and residuals of large intestine resection were manifested by diarrhea, abdominal pain and distention, bowel urgency, and frequent bowel movements. Further, the severity of the Veteran’s symptoms on VA examinations in January 2014 and November 2017 were not characterized by the examiners as severe. The examiners noted no malnutrition or absorption issues and that continuous medication was not required. Rather, diarrhea and frequent bowel movements were the only symptoms noted by the examiners. Similarly, VA treatment records do not tend to suggest severe symptoms or worse. Treatment records dated in 2018 reflect that the Veteran was well-nourished; worked full-time as a network engineer; and lifted weights daily. At a September 2018 interview, the examiner stated that the Veteran did not appear to be in any physical or mental distress. However, neither the lay nor the medical evidence more nearly reflects symptoms of severe ulcerative colitis characterized by numerous attacks per year and malnutrition, with the residual health assessed as fair during remissions. See 38 C.F.R. §§ 4.7, 4.114, Diagnostic Code 7323. The Board has also considered whether a higher rating under another Diagnostic Code is warranted. Diagnostic Code 7329 provides a 40 percent rating for residuals of large intestine resection with severe symptoms, objectively supported by examination findings. 38 C.F.R. § 4.114. A disability benefits questionnaire (DBQ) completed by private practitioner C.A. was submitted in February 2016. C.A. checked the box indicating that there were “Severe symptoms, objectively supported by examination findings, attributable to resection of large intestine” and this was described as “Had rectal bleeding + diarrhea.” Although the form directs clinicians to describe each symptom checked, here the clinician just checked boxes next to abdominal pain, abdominal distension, nausea, and pulling pain on attempting work or aggravated by movements of the body without further explanation or description. The DBQ reflects that there is interference with marked absorption and nutrition attributable to resection of small intestine but there was no objectively supported impairment of health or severe impairment or health. The Board finds that the DBQ findings have little probative value because (1) there is no clear indication that the Veteran was physically examined in connection with preparation of the DBQ, (2) the DBQ shows that no laboratory tests were performed, (3) the records (if any reviewed) in conjunction with preparing the DBQ are not identified, and (4) the conclusion that symptoms are severe is incongruous with the finding that there was no objectively supported impairment of health or severe impairment or health. The Board gives more probative weight to the January 2014 and November 2017 VA examinations as the medical findings are based on in-person examination. Although the Veteran’s representative argues that the November 2017 VA examination is too old to rate the Veteran’s current level of disability, there record shows no lay complaint or medical findings suggesting that a material change in the condition has occurred since the last VA examination. In fact, in September 2019, VA treatment records reflect essentially an interval history of no change in colitis. The Board has considered the lay evidence of record to include that from the Veteran’s spouse discussing the severity of the disability and its impact on their family. It is competent and credible. However, whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran’s complaints coupled with the medical evidence. Both the lay and medical evidence are probative in this case. Although the Veteran may believe that he meets the criteria for a higher disability rating, his complaints along with the medical findings do not more nearly reflect the criteria for a higher evaluation, as explained and discussed above. Lastly, a separate disability rating for large intestine resection, apart from colitis, is not warranted as this would violate the rule against pyramiding given that the symptomatology is duplicative and overlapping. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In short, the preponderance of the evidence weighs against finding that the Veteran’s symptoms resulted in the level of impairment required for a 60 percent rating or higher under Diagnostic Code 7323, or a 40 percent rating under Diagnostic Code 7329. The evidence does not support a staged rating as the factual findings show no distinct period where the service-connected disability exhibited symptoms that would warrant different ratings (i.e. separate evaluations for separate periods of time based on the facts found). Hart v. Mansfield, 21 Vet. App. 505 (2007). Accordingly, the claim is denied. As the evidence is not in equipoise, there is no doubt to resolve. 38 U.S.C. § 5107(b). C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Thaddaeus J. Cox, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § § 20.1303.