Citation Nr: 20021202 Decision Date: 03/24/20 Archive Date: 03/24/20 DOCKET NO. 14-05 707 DATE: March 24, 2020 ORDER Entitlement to a disability rating of 60 percent for service-connected ulcerative colitis is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDING OF FACT The Veteran’s ulcerative colitis is productive of severe symptoms, with numerous attacks per year, and with health fair during remission but not productive of pronounced symptoms resulting in marked malnutrition, anemia, and general debility; nor does he have severe liver abscesses. CONCLUSION OF LAW The criteria for entitlement to a disability rating of 60 percent for service-connected ulcerative colitis have been met. 38 U.S.C. §§ 1155, 5107(b), 5110; 38 C.F.R. §§ 3.102, 4.130, Diagnostic Code (DC) 7323. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from September 2008 to March 2012. This appeal comes to the Board of Veterans’ Appeals (Board) from a Department of Veterans Affairs (VA) September 2012 rating decision of the Agency of Original Jurisdiction (AOJ). The Veteran appeared before the undersigned Veterans Law Judge in a February 2019 Board hearing. A transcript of the hearing has been reviewed by the Board, and has been associated with the claims file. 1. Entitlement to a disability rating in excess of 10 percent prior to January 19, 2016 and in excess of 30 percent thereafter for service-connected ulcerative colitis The Veteran’s service-connected ulcerative colitis has been rated as 10 percent disabling prior to January 19, 2016, and rated as 30 percent disabling as of January 19, 2016. The Veteran contends that his service-connected ulcerative colitis warrants a higher disability rating. Disability evaluations are determined by comparing a veteran’s present symptomatology with criteria set forth in the VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). In deciding the Veteran’s higher rating claims, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 22 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. In Fenderson, the United States Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. In that decision, the Court also discussed the concept of the “staging” of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126. Hart appears to extend Fenderson to all increased rating claims. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same “disability” or the same “manifestations” under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as “such a result would overcompensate the claimant for the actual impairment of his earning capacity.” Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C. § 1155). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. That being said, if a veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). The Veteran’s ulcerative colitis is rated under DC 7323. 38 C.F.R. § 4.114. Under DC 7323, the following applies: a 10 percent rating is warranted for moderate symptoms with infrequent exacerbations. 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. Finally, a total rating (100 percent) 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. 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. It should also be noted that use of terminology such as "severe" 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. For the reasons set forth below, the Board finds that the symptoms of the Veteran’s ulcerative colitis most closely approximate the criteria for a 60 percent disability rating throughout the appellate period. 38 C.F.R. §§ 4.7, 4.114, DC 7323. Turning to the evidence or record, the Veteran’s medical records show that he developed ulcerative colitis while in service. In December 2011, the Veteran was afforded a VA examination. It was noted that the Veteran had been on medication for ulcerative colitis including tapering prednisone and that the Veteran still had a small amount of blood in the stools but no diarrhea or abdominal pain. The diagnoses included chronic active ulcerative colitis. In January 2016 the Veteran underwent a VA examination to determine the severity of his condition. The examiner noted that the Veteran has been on continuous medication since he was diagnosed, and that the Veteran’s symptoms since his diagnosis have been “about the same.” These symptoms were nausea, constant urgency [to use the restroom] with bloody diarrhea, abd[ominal] pain, weight loss.” The Veteran did not experience malnutrition. Per the examiner, the Veteran has “about 6 flareups per year that last from 2 [weeks] to 2 months.” The Veteran reported to the examiner that he loses about one month of work per year due to his condition. The Veteran has also testified as to the severity of his symptoms, and has provided multiple supporting lay statements from his family members and his employer. While the diagnosis of ulcerative colitis and the effects of the condition on the Veteran’s internal organs can only be done by a medical professional, lay persons are competent to testify to objective symptoms that can be later supported by a medical opinion. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). At his February 2019 Board hearing, the Veteran testified that the severity of his symptoms has been about the same since his initial diagnosis. The Veteran stated that he has been hospitalized multiple times since his diagnosis. This testimony is supported by the Veteran’s medical records, with the most recent hospitalization according to the records being in January 2019. At his hearing the Veteran testified that the flareup that he was experiencing at the time had lasted for “over a year,” though typically they last “anywhere from two weeks to three months at a time.” The Board finds that this constitutes severe symptoms with numerous attacks a year. 38 C.F.R. § 4.114, DC 7323. According to the Veteran, he not only experiences symptoms from his condition but also the medication used to treat the disease. His ulcerative colitis causes him weight loss, pain, nausea, “20 plus stools a day,” bloody stools, and fatigue. His medication causes bone density loss and arthritis. As such, he can only take his medication for “two and a half to three months” at a time, at which point “it’s not 100% guarantee[d]” he would go “in a somewhat of remission state.” In February 2019 the Veteran submitted a lay statement from his employer, Mr. D. According to Mr. D. the Veteran “has not been himself in a very long time.” Because the Veteran is an “exemplary employee,” Mr. D. had made “several special accommodations to help” the Veteran and to “manage his condition.” This includes assigning the Veteran special projects that allow him to be within a close proximity to a restroom at nearly all times. The Veteran submitted two more lay statements in February 2019, one from his sister, Ms. M., and another from his friend, Ms. C. Ms. C. noted that the Veteran had to “constantly go to the bathroom,” that his “normal” way of life included being “sick daily/nightly,” and that he experienced “knife-like pain in his stomach a[nd] nausea.” The Veteran’s “life seemed to revolve around the toilet.” The Veteran almost missed the birth of his and Ms. C.’s child because he was hospitalized for “nearly two weeks.” Ms. M. testified that there was a point in time that the Veteran “went to the emergency room every single day” because of his condition. According to Ms. M., the Veteran would be “unable to eat, constantly going to the bathroom, and suffered from [severe] abdominal pain.” Ms. M. notes that the Veteran’s condition had more or less been the same “over the last eight years” he separated from the military. The Board finds that the Veteran, Mr. D., Ms. C., and Ms. M. are competent to testify to the frequency and severity at which the Veteran’s symptoms occur, the onset of his symptoms, how often he is hospitalized, and how it affects his social and employment situations. As noted above, the criteria for a 60 percent disability rating due to ulcerative colitis requires severe symptoms with numerous attacks per year, and that the Veteran’s health be fair only in remissions. Based on the available evidence of record, the Board finds that the necessity for continual medication treatment since his separation from the military, the severity of the Veteran’s symptoms, the fact that he experiences multiple flareups per year, that he regularly has to go to the hospital for treatment, and that his symptoms only improve, albeit temporarily, between flareups, a 60 percent disability rating is warranted for the entire period of appeal. As the Veteran’s ulcerative colitis does not result in malnutrition, anemia, general debility, nor are serious complications such as liver abscesses shown, the Board finds that a 100 percent disability rating for any period on appeal is not warranted. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Neville, 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.