Citation Nr: 20006017 Decision Date: 01/24/20 Archive Date: 01/23/20 DOCKET NO. 05-28 538 DATE: January 24, 2020 ORDER Entitlement to a rating in excess of 30 percent for Crohn’s disease is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s Crohn’s disease has been manifested by no more than moderately severe symptoms with frequent exacerbations but without malnutrition throughout the appeal period. 2. The Veteran failed to complete VA Form 21-8940 and the evidence is insufficient to establish that he is unemployable as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for Crohn’s disease are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.114, Diagnostic Code (DC) 7399-7323. 2. The criteria for entitlement to a TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from February 2000 to July 2000. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2004 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2008, the Veteran testified at a hearing before a Veterans Law Judge. The Board remanded the claims for further development in October 2008, December 2009, March 2011, May 2012, and March 2016. In August 2019, the Veteran was notified that the Veterans Law Judge who conducted the May 2008 hearing was no longer at the Board and was given 30 days to request a new Board hearing in conjunction with this appeal. The Veteran did not respond. 1. Entitlement to a rating in excess of 30 percent for Crohn’s disease is denied. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. If two disability ratings are potentially applicable, 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. Reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran’s Crohn’s disease is rated under the provisions of 38 C.F.R. § 4.114, DC 7323, which contemplates ulcerative colitis. A 30 percent rating is warranted for moderately severe symptoms with frequent exacerbations. A 60 percent rating is warranted for severe symptoms with numerous attacks a year and malnutrition, the health only fair during remissions. A 100 percent rating is warranted for pronounced symptoms resulting in marked malnutrition, anemia, and general debility, or with serious complications, such as liver abscess. 38 C.F.R. § 4.114, DC 7323. The words “slight,” “moderate” and “severe” as used in the various diagnostic codes are not defined in the VA Schedule for Rating 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. Pursuant to 38 C.F.R. § 4.113, certain 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 “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.” 38 C.F.R. § 4.113. Ratings under DCs 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 diagnostic code that 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. By way of background, a September 2000 rating decision awarded service connection for Crohn’s disease and assigned a 60 percent rating, effective July 29, 2000. A September 2002 rating decision decreased the rating to 30 percent, effective December 1, 2002. The current appeal period before the Board begins on May 28, 2004, the date VA received the Veteran’s claim for an increased rating, plus the one-year “look back” period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). Upon review of the totality of the record, the Board finds that a rating in excess of 30 percent is not warranted for the Veteran’s Crohn’s disease at any point during the appeal period, as the evidence does not reflect symptoms indicative of severe ulcerative colitis with numerous attacks a year and malnutrition or pronounced ulcerative colitis, resulting in marked malnutrition, anemia, and general debility, or with serious complication as liver abscess. In this regard, the Veteran has reported symptoms of nausea, vomiting, diarrhea, and abdominal cramping occurring daily throughout the appeal period. See August 2004, July 2009, and May 2015 VA examination reports. Laboratory evaluations were normal and there was no evidence of malnutrition or weight loss. Id. Moreover, the May 2015 VA examiner described the Veteran’s Crohn’s disease as moderately severe with frequent exacerbations based on the Veteran’s subjective descriptions, but noted his subjective symptoms were out of proportion compared to objective findings upon review of the medical record, medical literature, and clinical experience. Regarding anemia, the May 2015 VA examiner noted that the Veteran’s history of surgery for Crohn’s disease put him at risk for anemia with iron/B12 deficiency. However, the examiner found the Veteran’s treatment records showed near normal levels despite inconsistent adherence to recommended supplementation, noting that all of his B12 levels were within normal limits since March 2007. Although there was evidence of borderline iron deficiency anemia, the examiner noted that it was not disabling and would not result in symptomatic anemia. Additionally, the July 2009 VA examiner found no current evidence of anemia and noted that iron deficiency anemia as a result of malabsorption had been completely corrected. The evidence reflects that the severity of the symptoms and disability picture does not warrant a rating in excess of 30 percent for Crohn’s disease under DC 7323. While the Veteran’s reported symptoms may be considered severe, with numerous attacks a year, including multiple episodes of bowel movements and diarrhea a day, but at no point has he endorsed malnutrition nor is there any indication of malnutrition, which is required for a 60 percent rating. See 38 C.F.R. § 4.114, DC 7323; Johnson v. Wilkie, 30 Vet. App. 245 (2018) (addressing successive and conjunctive rating criteria). Therefore, a higher 60 percent rating is not warranted. The Board has considered whether a higher rating is warranted under alternate diagnostic codes relating to disabilities of the digestive system. However, the other diagnostic codes that provide for a higher rating contemplate disabilities and symptomatology not demonstrated in the competent evidence of record. Also, to reiterate, DCs 7301-7329, 7331, 7342, and 7345-7348 cannot be combined. See 38 C.F.R. § 4.114. Thus, a rating in excess of 30 percent is not warranted. Finally, the Board has also considered whether a separate compensable rating is warranted for the Veteran’s associated abdominal scar. However, VA examiners indicated that the Veteran abdominal scar was not painful or unstable and not greater than 39 square centimeters (6 square inches). See August 2004, July 2009, and May 2015 VA examination reports. These findings do not allow for separate compensable ratings under the rating criteria for scars. See 38 C.F.R. § 4.118, DCs 7800-7805. 2. Entitlement to a TDIU is denied. A total disability rating may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16. Consideration may be given to a veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 4.16, 4.19. The fact that a veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the veteran, because of service-connected disabilities, is incapable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Service connection is currently in effect for unspecified depressive disorder with anxiety disorder and Crohn’s disease, for a combined rating of 60 percent from July 29, 2000, 30 percent from December 1, 2002, and 70 percent from May 16, 2017. Thus, the Veteran meets the criteria for consideration of a TDIU on a schedular basis as of May 16, 2017. 38 C.F.R. § 4.16(a). Accordingly, what remains to be determined is whether the functional impairment associated with his service-connected disabilities are of such nature and severity as to preclude substantially gainful employment. The Veteran did not complete VA Form 21-8940 as requested in the May 2012 Board remand. While failure to complete the form is not fatal to a TDIU claim in and of itself, his failure to do so deprives the Board of information as to the Veteran’s employment history, educational history and training, and income information necessary to address a claim for TDIU. “The duty to assist is not always a one-way street.” Woods v. Gober, 14 Vet. App. 214, 224 (2000). The competent evidence of record does not reflect that the Veteran is unable to work due to his service-connected disabilities; instead it shows that he has been employed during the appeal period. At an August 2004 VA examination, the Veteran reported that he lost his job working for Cingular Wireless, where he was employed from August 2003 to December 2003, as a result of his abdominal cramping and diarrhea, and stated that he had been unable to work since December 2003. In a February 2007 correspondence, the Veteran indicated that he worked a graveyard shift. At a July 2009 VA examination, he stated that he was employed at a shipyard until March 2009 but had to stop working due to dehydration and not being close to bathrooms. The Veteran was enrolled in VA work study and worked about 20 hours per week at a general office in City Hall. See October 2011 and July 2012 VA Memos. Thereafter, he reported working at a Holiday Inn since either December 2011 or December 2012. See July 2014 and September 2016 Financial Status Reports. In a May 2017 Disability Benefits Questionnaire, the Veteran reported currently working full time in hospitality and having the same job for 4 years. He stated that he had been fired or suspended from jobs previously due to health issues and attendance. He indicated that the frequent need to use the bathroom was affecting his work performance, in addition to pain and discomfort. In a June 2017 VA examination, he indicated that he worked at the front desk of a hotel “off and on for 3 years now.” Here, the record simply does not contain enough information for the Board to find equipoise that the Veteran’s service-connected disabilities preclude substantially gainful employment. His failure to complete VA Form 21-8940 leaves the Board without the ability to request information from his prior employers as to his reason for leaving. Furthermore, none of the VA examiners have indicated that the Veteran is precluded from working due to his service-connected disabilities. The Board acknowledges that the Veteran may have been unemployed during the appeal period. However, as noted above unemployment and/or underemployment are not equivalent to unemployability, and considerable industrial impairment due to the Veteran’s Crohn’s disease, as well as his psychiatric disorders, are already contemplated in the ratings currently assigned. 38 C.F.R. § 4.1 (the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability). Here, there is no indication in the competent and credible evidence of record that the Veteran is incapable of performing the physical and mental acts required by employment due to his service-connected disabilities. In sum, the Veteran has failed to cooperate with VA’s attempts to develop the claim for TDIU, and the record that is before the Board does not demonstrate that the Veteran’s service-connected disabilities preclude him from securing or following a substantially gainful occupation. Thus, the claim for TDIU must be denied. See Wood, 1 Vet. App. at 193 T.D. JONES Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.S. Mahoney 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.