Citation Nr: 20032268 Decision Date: 05/07/20 Archive Date: 05/07/20 DOCKET NO. 14-35 043A DATE: May 7, 2020 ORDER Entitlement to an increased rating in excess of 30 percent disabling for ulcerative colitis is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Throughout the entire period on appeal, the Veteran’s ulcerative colitis was manifested by frequent exacerbations of diarrhea, blood in stool, and abdominal pain but not severe symptoms with a history of numerous attacks a year and malnutrition, or health only fair during remissions. 2. The Veteran is not unemployable as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a 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, 4.114, Diagnostic Code (Code) 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 from June 1976 to November 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The appeal was most recently before the Board in July 2018 when it was remanded for further development. The Board specifically directed that the Veteran be scheduled for a new examination to determine the severity of his ulcerative colitis because he had expressed how he experienced worsening symptoms since the last VA examination and to update the record with the most recent VA treatment records. Then to adjudicate both the ulcerative colitis issue and TDIU. The Board finds there has been substantial compliance with the remand directives for the claims decided here. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to an increased rating in excess of 30 percent disabling for ulcerative colitis Disability ratings are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate Codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran seeks a higher rating for his service-connected ulcerative colitis. His ulcerative colitis is evaluated as 30 percent disabling from June 6, 1998 under 38 C.F.R. § 4.114, Code 7323. The Veteran filed an informal claim for an increased rating in December 2007. The Board concludes that a higher rating for the Veteran’s service-connected ulcerative colitis is not warranted for any period on appeal. Under Code 7323, a 30 percent disability rating is assigned for a moderately severe presentation with frequent exacerbations. A 60 percent disability rating is assigned for a severe presentation with numerous attacks a year and malnutrition, with the health being only fair during remissions. A 100 percent rating is warranted for a pronounced presentation with marked malnutrition, anemia, and general debility, or with serious complication as liver abscess. 38 C.F.R. § 4.114. Words such as “severe,” “moderate,” and “mild” are not defined in the rating schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 C.F.R. §§ 4.2, 4.6. The Board notes that ratings under Diagnostic Codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348, inclusive, will not be combined with each other. A single rating will be assigned under the Diagnostic Code which reflects the predominant disability picture, with elevation to the next higher rating where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114. In a November 2007 medical statement, the physician reported that he performed an upper endoscopy for the Veteran who has been experiencing abdominal pains, diarrhea, and has a history of ulcerative colitis. He was found to have multiple gastric ulcers and was prescribed medicine. In a March 2008 VA examination, the Veteran complained that his colitis has progressively worsened. He complained of bright red blood from his stool. He also complains of diarrhea with about eight to ten bowel movements per day that is associated with frequent abdominal discomfort and sharp pain in the right lower quadrant. When reporting his medical history, the Veteran reported that he has had a history of persistent diarrhea more than six times daily. He also reports a history of intestinal pain in the right lower quadrant. He experiences this severe colicky, crampy, and sharp pain several times daily for up to one to two hours. He also reported that he has a history of ulcerative colitis with about four to five attacks per year. When reporting his employment history, the Veteran explained that he currently works full-time as a behavioral technician at a school for autism. He reports that he has been employed between five to ten years and that in the last year he has lost less than a week of time from work. The cause of his time lost from work was due to the attacks of his ulcerative colitis. During the physical examination the examiner reported that the Veteran’s overall general health is fair, he does not have signs of significant weight loss or malnutrition, does not have signs of anemia, does not have a fistula, and does not have an abdominal mass or tenderness. The examiner reported that the colonoscopy done in November 2007 revealed diffuse erosions, erythema and blood throughout the sigmoid and descending colon. The pathology report revealed focal mild active colitis in all specimens. The examiner reported that the Veteran’s ulcerative colitis has significant general occupational effects. The examiner explained that the disability’s impact on occupational activities include decreased concentration, weakness or fatigue, and pain. He furthered that the resulting work problem he has is increased absenteeism. The examiner also reported that the Veteran’s ulcerative colitis has mild effects on his chores, shopping, exercise, recreation and moderate effects on sports and traveling. In an October 2010 VA treatment note, the Veteran reported that his ulcerative colitis affects him on a daily basis. He has been bothered more recently due to a flare-up. He reported that on a bad day he has a lot of frequency and urgency which affects his ability to do active exercise. In January 2011, the Veteran submitted a Residual Functional Capacity Questionnaire where the Veteran reported symptoms of pain, dizziness, fatigue, and weakness for his ulcerative colitis. The examiner reported that the Veteran’s symptoms frequently interfere with his attention and concentration. The examiner reported that the Veteran could sit for five minutes at one time and stand for 10 minutes. The examiner claimed that the Veteran needs to lie down each day for about one to two hours. The examiner reported that the Veteran can each sit, stand, and walk for less than two hours in total in an eight-hour workday. The examiner claimed that the Veteran needed a job that permitted shifting positions at will from sitting, standing, or walking and that he will need to take breaks every couple of hours for ten to fifteen minutes. The examiner found that the Veteran could occasionally carry ten pounds or less, but that he can never carry 20 or 50 pounds. The examiner claimed that based on total impairments, he has a 75 percent or less productivity level compared to a healthy individual. The Veteran is likely to be absent from work more than four times a month. In a March 2011 VA examination, the Veteran reported that his ulcerative colitis persists intermittently with remissions and that he continues to be medically managed through VA. He reports blood in his stool approximately every other month. He reports he has a history of diarrhea where he has it more than six times a day. He has had four to seven attacks per year and they usually last for about three days. He also reports that he has a history of severe intestinal sharp pain in the epigastric area. He experiences it several times per week with the usual duration of one to two hours. He reported that he experiences about six attacks of ulcerative colitis per year. The examiner reported that the Veteran’s overall general health is good and that he does not have any signs of significant weight loss or malnutrition. He also does not have signs of anemia or has a fistula. There is no abdominal mass or tenderness. The Veteran reported that he currently works full-time at the Broward School Board. He has worked there for about five to ten years and has lost about a week of time from work during the last year. The examiner reported that the Veteran’s ulcerative colitis has significant occupational effect on the Veteran since it increases absenteeism. He reports mild effects from his colitis with exercise and toileting and moderate effects on sports. In February 2016, the Veteran’s wife submitted a statement explaining how the Veteran’s ulcerative colitis has “wrecked” their marriage and their relationship. She explained that the Veteran has to get up an hour and a half early so he can start using the bathroom a minimum of eight to ten times or more before he can leave the house to go to work. He cramps in the morning and is unable to eat breakfast. If he does eat breakfast, he has to run to the bathroom several times before he can leave for work. On many occasions, he is not able to make it to the car and goes on himself. He has to keep two changes of outfits in his car since he is often unable to hold his bowel movements and goes on himself either in the car or even at work. She reports that it is difficult for him to work since he constantly has to run out of the classroom and rush to the bathroom. She reported that they have had to regulate his diet and eat very healthy due to his ulcerative colitis. She also expressed how because of his disability, they are unable to go out and date as a couple and rarely socialize with friends and family. She also reported that it is important that he rests, which consists of him lying in bed to try to calm his system. He has no libido, which has impacted the marriage immensely. In an April 2016 private medical statement, the examiner explained that the Veteran reported that he has 15 to 25 episodes of diarrhea along with fecal incontinence and severe abdominal pain every day. The Veteran further reported that he has diarrhea in his pants while driving, working in a classroom with students, at social events, and at home, including in his sleep. He furthered that there are times where he cannot control it and has had to go home to change clothes because he had diarrhea in his pants. He has to wake up two hours before leaving for work because he experiences at times up to 20 episodes of foul smelling, bloody stools. The examiner reported that the Veteran claims that his excessive diarrhea has limited him professionally and has prevented him from attending all social and public gatherings. The examiner reported that the Veteran is fatigued and that his ulcerative colitis has made him a social recluse. In a July 2016 private medical statement, the examiner explained that the Veteran reported that he has been forced to turn down several jobs, such as construction and a chauffeur, since he could not be near a restroom. The Veteran further reported that when he is sick, he loses anywhere from five to fifteen pounds, has blood in his stool, has constant abdominal pain, and has to watch his diet for life. The Veteran also reported that because of his ulcerative colitis, he goes to the bathroom six to seven times a day and can go up to eight to nine times when it flares up. The Veteran also reported that he experienced vocational difficulties because he always must be near a restroom. In an August 2016 private medical statement, the examiner explains that the Veteran reported that he has 15 to 25 episodes of diarrhea along with fecal incontinence and severe abdominal pain. The examiner explained that because the Veteran has a very limited diet and cannot eat much, he has malnutrition due to the severe abdominal pains, flatulence, and diarrhea. This has caused him unable to eat a diet that has a good nutritional balance. Moreover, the examiner said that the Veteran is afraid to eat because of his severe symptoms. The examiner further reported based off of the Veteran’s reports that he has extreme fatigue, is severely debilitated, anemic, and malnourished. In a November 2016 VA treatment record, the Veteran reported that he lost weight and attributed it to changing his diet due to his ulcerative colitis. He reported that he noticed that the change in diet helped since he has less bowel movements. In a November 2017 VA treatment record, the Veteran was complaining of an exacerbation of his ulcerative colitis. He still complains of diarrhea and has slight crampy abdominal pain. The examiner reported that the Veteran had a good appetite and that he has had at least one flare up per year for many years. In a March 2018 statement by the Veteran he reported that he has to go to the bathroom 15 to 20 times a day and that he diarrheas on himself because he does not have the ability to control his bowel movements. He has to wake up two hours early every day to use the bathroom before he can leave the house. Even after taking that precaution, sometimes he cannot make it to his car because he has uncontrollable bowel movements. When he has flare-ups, it even worse. He reports that his ulcerative colitis has affected his marriage negatively and it has impacted his work environment since he constantly has to leave his post to run to the bathroom. Because of this, he claims that he has limited types of jobs he can pursue since he has to work near a bathroom and be able to go to the bathroom frequently. He reports that he is unable to socialize, visit friends and family, or go anywhere. He has to stay home because he fears that he will go to the bathroom on himself out in public. While he does wear adult diapers, it is really uncomfortable for him to walk around with his bowel in his pants. In a June 2018 VA treatment record, the Veteran reported that he was off for the summer for school and that he is working as an uber driver for the summer. He reported it being challenging due to his bowel issues. In a January 2019 VA treatment record, the Veteran reported that his colitis has been under control and that him and his wife were able to visit Chicago during Christmas to see his brother. In a July 2019 VA treatment record, the Veteran reported having a good appetite. In the January 2020 VA examination, the Veteran reported that he has about seven episodes of blood stools daily. He reported that his condition has worsened and that he cannot sleep because he had to wake up many times at night due to bloody diarrhea. He also reported that he has had to leave work many times to change his clothes. The Veteran reported symptoms of bloody diarrhea, difficulty sleeping due to frequent diarrhea, no sex drive, decreased appetite, and depression due to having to wear adult diapers. The Veteran reported frequent episodes of bowel disturbance with abdominal distress. The examiner reported that the Veteran does have weight loss attributable to his intestinal condition since his baseline weight was 180 pounds and at the time of the examination, he was 170 pounds. But he does not have malnutrition. The examiner opined that the Veteran’s ulcerative colitis impacts his ability work since he has lost one to two weeks of work in the past year. Also, the ulcerative colitis causes him to use the bathroom several times a day and since he is a behavioral tech that works with severe autistic children, he has to stay with them and at times has to leave the child to be able to use the bathroom. Based on a review of the record, the Board finds, that entitlement to a rating in excess of 30 percent for ulcerative colitis is not warranted at any point during the period on appeal. Throughout the period on appeal, the Veteran’s ulcerative colitis has been predominately manifested by frequent toileting with blood, and he frequently reported abdominal or stomach pain. He also reported diarrhea at almost all examinations and medical notes. During the period on appeal, the Veteran was shown to have attacks of his ulcerative colitis, that varied throughout the period on appeal. In November 2017, the examiner claimed that the Veteran had flare-ups of his ulcerative colitis once a year for many years. In the March 2011 VA examination, the Veteran reported having six attacks of his ulcerative colitis per year. In the March 2008 VA examination, he reported having four to five attacks per year. While it is possible that the Veteran reflected the numerous attacks a year as contemplated by the 60 percent criteria under Code 7323, he does not fulfill the rest of the requirements for a 60 percent disability rating. Moreover, he has consistently reported the frequent episodes which meets the 30 percent criteria. Accordingly, the evidence does not reflect that the Veteran’s ulcerative colitis manifested in symptoms that were severe or manifested with numerous attacks a year at any point during the period on appeal. Additionally, while the Veteran was noted to have lost weight during the period on appeal, at no time was he noted to have malnutrition or that his health was only fair during periods of remission. Thus, the Board finds that the criteria for a higher 60 percent rating for ulcerative colitis is not more closely approximated. In deciding the increased rating claims, the Board has also considered the Veteran’s lay statements that his ulcerative colitis is worse than currently evaluated. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which the manifestations of his ulcerative colitis are evaluated. As such, the Board finds these records to be more probative than the Veteran’s subjective complaints of increased symptomatology. The Board has considered the doctrine of reasonable doubt but has determined that it is inapplicable because the preponderance of the evidence is against a higher rating. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.3, 4.7, 4.114, 4.130. 2. TDIU 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 major depressive disorder with a 50 percent disability rating effective January 10, 2011; ulcerative colitis with a 30 percent disability rating effective June 8, 1998; inflammatory spondyloarthropathy of the lumbar spine with a 10 percent disability rating from June 8, 1998; and hepatitis C with a noncompensable disability rating effective July 8, 2015. He has a combined rating of 40 percent disabling from June 8, 1998 and 70 percent disabling from January 10, 2011. Thus, the Veteran meets the criteria for consideration of a TDIU on a schedular basis as of January 10, 2011. 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 submitted his informal claim for a TDIU in June 2011. In July 2011, the Veteran submitted a Residual Functional Capacity Questionnaire where the Veteran reported symptoms of pain, dizziness, fatigue, and weakness for his ulcerative colitis. The examiner reported that the Veteran’s symptoms frequently interfere with his attention and concentration. The examiner reported that the Veteran could sit for five minutes at one time and stand for 10 minutes. The examiner claimed that the Veteran needs to lie down each day for about one to two hours. The examiner reported that the Veteran can each sit, stand, and walk for less than two hours in total in an eight-hour workday. The examiner claimed that the Veteran needed a job that permitted shifting positions at will from sitting, standing, or walking and that he will need to take breaks every couple of hours for ten to fifteen minutes. The examiner found that the Veteran could occasionally carry ten pounds or less, but that he can never carry 20 or 50 pounds. The examiner claimed that based on total impairments, he has a 75 percent or less productivity level compared to a healthy individual. The Veteran is likely to be absent from work more than four times a month. The Veteran then submitted a formal claim for TDIU in August 2011 reporting that he has been under a doctor’s care within the past year. He did not answer the date his disability affected his full-time employment, the date he last worked full-time, or the date he became too disabled to work. He did report that he works as a Behavior Tech at Quest Center and works with kids with disabilities for 35 hours per week. He reported that he has been employed there since 2002 till present and that he lost five weeks of work due to his illness. He reported that he did not leave his las job because of his disability. He reported having a high school diploma and no further education. He reported that he attended 71L school from 1976 to 1993 and NCO in 1975. He also submitted a form 21-4192 by his employer, Quest Center, in September 2011. The form reported that the Veteran began working at Quest Center in September 2001, that he still works there, and earned $36, 614.04 in the last year. The employer reported “N.A” when asked about the time lost during the past year. The form confirmed that the Veteran works as a Behavior Technician. In February 2016, the Veteran’s wife submitted a statement explaining how the Veteran’s ulcerative colitis has “wrecked” their marriage and their relationship. She explained that the Veteran has to get up an hour and a half early so he can start using the bathroom a minimum of eight to ten times or more before he can leave the house to go to work. He cramps in the morning and is unable to eat breakfast. If he does eat breakfast, he has to run to the bathroom several times before he can leave for work. On many occasions, he is not able to make it to the car and goes on himself. He has to keep two changes of outfits in his car since he is often unable to hold his bowel movements and goes on himself either in the car or even at work. She reports that it is difficult for him to work since he constantly has to run out of the classroom and rush to the bathroom. She reported that they have had to regulate his diet and eat very healthy due to his ulcerative colitis. She also expressed how because of his disability, they are unable to go out and date as a couple and rarely socialize with friends and family. She also reported that it is important that he rests, which consists of him lying in bed to try to calm his system. He has no libido, which has impacted the marriage immensely. In an April 2016 private medical statement, the examiner explained that the Veteran reported that he has 15 to 25 episodes of diarrhea along with fecal incontinence and severe abdominal pain every day. The Veteran further reported that he has diarrhea in his pants while driving, working in a classroom with students, at social events, and at home, including in his sleep. He furthered that there are times where he cannot control it and has had to go home to change clothes because he had diarrhea in his pants. He has to wake up two hours before leaving for work because he experiences at times up to 20 episodes of foul smelling, bloody stools. The examiner reported that the Veteran claims that his excessive diarrhea has limited him professionally and has prevented him from attending all social and public gatherings. The examiner reported that the Veteran is fatigued and that his ulcerative colitis has made him a social recluse. In a July 2016 private medical statement, the examiner explained that the Veteran reported that he has been forced to turn down several jobs, such as construction and a chauffeur, since he could not be near a restroom. The Veteran further reported that when he is sick, he loses anywhere from five to fifteen pounds, has blood in his stool, has constant abdominal pain, and has to watch his diet for life. The Veteran also reported that because of his ulcerative colitis, he goes to the bathroom six to seven times a day and can go up to eight to nine times when it flares up. The Veteran also reported that he experienced vocational difficulties because he always must be near a restroom. In a March 2018 statement by the Veteran he reported that he has to go to the bathroom 15 to 20 times a day and that he diarrheas on himself because he does not have the ability to control his bowel movements. He has to wake up two hours early every day to use the bathroom before he can leave the house. Even after taking that precaution, sometimes he cannot make it to his car because he has uncontrollable bowel movements. When he has flare-ups, it even worse. He reports that his ulcerative colitis has affected his marriage negatively and it has impacted his work environment since he constantly has to leave his post to run to the bathroom. Because of this, he claims that he has limited types of jobs he can pursue since he has to work near a bathroom and be able to go to the bathroom frequently. He reports that he is unable to socialize, visit friends and family, or go anywhere. He has to stay home because he fears that he will go to the bathroom on himself out in public. While he does wear adult diapers, it is really uncomfortable for him to walk around with his bowel in his pants. In a June 2018 VA treatment record, the Veteran reported that he was off for the summer for school and that he is working as an uber driver for the summer. He reported it being challenging due to his bowel issues. In a January 2019 VA treatment record, the Veteran reported that his colitis has been under control and that him and his wife were able to visit Chicago during Christmas to see his brother. In the January 2020 VA examination, the Veteran reported that he has about seven episodes of blood stools daily. He reported that his condition has worsened and that he cannot sleep because he had to wake up many times at night due to bloody diarrhea. He also reported that he has had to leave work many times to change his clothes. The Veteran reported symptoms of bloody diarrhea, difficulty sleeping due to frequent diarrhea, no sex drive, decreased appetite, and depression due to having to wear adult diapers. The Veteran reported frequent episodes of bowel disturbance with abdominal distress. The examiner reported that the Veteran does have weight loss attributable to his intestinal condition since his baseline weight was 180 pounds and at the time of the examination, he was 170 pounds. But he does not have malnutrition. The examiner opined that the Veteran’s ulcerative colitis impacts his ability work since he has lost one to two weeks of work in the past year. Also, the ulcerative colitis causes him to use the bathroom several times a day and since he is a behavioral tech that works with severe autistic children, he has to stay with them and at times has to leave the child to be able to use the bathroom. 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. 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 employer does not report having problems with the Veteran and his disability. Furthermore, the VA examiner has not indicated that the Veteran is precluded from working due to his service-connected disabilities. The examiner points out that the Veteran experiences frequent bowel movements and has to go to the bathroom often, but the examiner did not explain that he could not do his job because of this. Also, considerable industrial impairment due to the Veteran’s service-connected disabilities 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. 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. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Imam, 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.