Citation Nr: 21000861 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 16-33 508 DATE: January 6, 2021 ORDER Entitlement an initial disability rating in excess of 30 percent for irritable bowel syndrome (IBS) with diverticulitis, gastroesophageal reflux disease and hiatal hernia is denied. REMANDED The issue of entitlement to service connection for chronic fatigue syndrome is remanded. The issue of entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDING OF FACT During the entire period on appeal the Veteran’s IBS with diverticulitis, gastroesophageal reflux disease and hiatal hernia has been manifested by diarrhea, abdominal pain, vomiting, and nausea. CONCLUSION OF LAW The criteria for an evaluation in excess of 30 percent for irritable bowel syndrome with diverticulitis, gastroesophageal reflux disease and hiatal hernia have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7319. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1988 to February 1989 and from December 1990 to May 1991. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a September 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously remanded by the Board in October 2019. A review of the claims file shows that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The case has been returned to the Board for review. In May 2019, the Veteran testified during a video conference hearing before a Veterans Law Judge (VLJ). A transcript of the hearing is associated with the claims file. In October 2019, the Board remanded the claim of entitlement to service connection for a gastrointestinal disability, other than IBS, for additional development. A June 2020 rating decision granted entitlement to service connection for diverticulitis, gastroesophageal reflux disease and hiatal hernia and combined the disabilities with the Veteran’s service-connected IBS. As this represents a total grant of the benefit sought on appeal with respect to this issue, it is no longer before the Board. See Grantham v. Brown, 114 F. 3d 1156, 1159 (Fed. Cir. 1997). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for TDIU is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. at 452-54. In this case a June 2019 private examiner reported that the Veteran’s IBS symptoms make consistent employment difficult due to unpredictable frequent and severe symptoms. The Board interprets this statement as an indication that the Veteran feels he is unable to secure or follow a substantially gainful occupation as a result of the service-connected disability at issue on appeal. Accordingly, the Board finds that a claim for a TDIU has been raised as part and parcel to the increased rating claim. Therefore, the issue of entitlement to a TDIU is before the Board on appeal and is properly included in the list of issues before the Board. In a September 2020 letter, the Board notified the Veteran that the VLJ who conducted the May 2019 hearing was no longer employed by the Board, and he was afforded the opportunity to participate in another Board hearing. This letter specifically stated that if no reply was received by VA within 30 days, the Board would assume that another hearing was not desired and proceed with readjudication. The Veteran did not respond within the allotted time period, and thus, the Board will readjudicate the Veteran’s appeal without the need to undertake another Board hearing. Increased Rating Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” in all claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). 1. Entitlement to an increased initial rating for IBS with diverticulitis, gastroesophageal reflux disease and hiatal hernia is denied. The Veteran seeks a higher initial rating for his service-connected IBS with diverticulitis, gastroesophageal reflux disease and hiatal hernia. The Veteran’s service-connected IBS is rated as 30 percent disabling under 38 C.F.R. § 4.114, Diagnostic Code 7319. The applicable rating period is from June 12, 2014, the effective date for the award of service connection for IBS, through the present. See 38 C.F.R. § 3.400. Under Diagnostic Code 7319, a maximum 30 percent rating is warranted for severe irritable colon syndrome with diarrhea or alternating diarrhea and constipation, with more or less constant abdominal distress. 38 C.F.R. § 4.114, Diagnostic Code 7319. Ratings under Diagnostic Codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 inclusive may not be combined with each other; rather a single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. See 38 C.F.R. § 4.114. During the period on appeal the Veteran contends that his IBS has been characterized by diarrhea, abdominal pain and discomfort, vomiting, and nausea. See May 2019 Board hearing transcript. Based on the evidence of record the Board finds that the preponderance of the evidence is against finding that an increased rating in excess of 30 percent is warranted for the appeal period. The Veteran was provided a private medical examination in June 2019. The examiner noted that the Veteran takes continuous medication for his intestinal condition. Symptoms attributed to IBS were diarrhea, nausea and episodes of bowel disturbance with abdominal distress. The examiner noted that the Veteran has malnutrition, serious complications or other general health effects attributable to the intestinal condition, including symptoms of upper/lower GI problems that interfere with daily activities. The examiner noted that the Veteran’s IBS symptoms make consistent employment difficult due to unpredictable, frequent and severe symptoms of pain, diarrhea and nausea. The Veteran was provided a VA examination in January 2020. The VA examiner noted that the Veteran had intestinal surgery in 2011 and that the Veteran requires continuous medication for control of his intestinal condition. Symptoms attributed to the Veteran’s condition included alternating diarrhea and constipation and nausea. The Veteran did not have weight loss or inability to gain weight attributable to intestinal surgery. Based on the lay and medical evidence of record the Board finds that the Veteran’s IBS does not more nearly approximate the level of severity contemplated by an increased rating during the period on appeal. The Veteran reported his ongoing symptoms of diarrhea, abdominal pain, vomiting and nausea. However, such lay evidence, even when accepted as accurate does not establish a level of disability contemplated by a higher evaluation. The evidence of record supports that the Veteran’s IBS was characterized by a 30 percent rating during the entire period on appeal. A rating in excess of 30 percent is not warranted. Examining the medical evidence of record the Board notes that an increased rating is not warranted. The Board notes that the VA examinations and treatment records all consistently note ongoing symptoms of diarrhea, abdominal cramping, vomiting and nausea. The Veteran has been assigned a 30 percent rating during the period on appeal which is the highest schedular rating under Diagnostic Code 7319. The Veteran’s IBS is rated under the diagnostic code which reflects the predominant disability picture. Further, no additional higher or alternative ratings under different Diagnostic Codes for the digestive system can be applied during this period. The Board has considered possibly evaluating the Veteran’s service-connected IBS under other applicable diagnostic codes governing other disorders of the digestive system; however, the evidence of record does not reflect that, at any time during the period on appeal, the Veteran’s IBS has manifested symptoms of peritoneum adhesions (Diagnostic Code 7301); gastrointestinal ulcers (Diagnostic Codes 7304, 7305, 7306); gastritis (Diagnostic Code 7307); liver disease (Diagnostic Code 7311, 7312); ulcerative colitis or dysentery (Diagnostic Codes 7322, 7323); or pancreatitis (Diagnostic Code 7347). See 38 C.F.R. § 4.114. Thus, the Board finds that an evaluation under any other applicable diagnostic code would not avail the Veteran of a higher evaluation. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). As to the Veteran’s hiatal hernia, the medical evidence of record does not reflect symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. A January 2020 VA examiner noted that the Veteran does not have hematemesis, melena or symptoms combination productive of severe impairment of health. As such, a rating of 60 percent is not warranted under Diagnostic Code 7346. The Board therefore finds that the criteria for an initial rating in excess of 30 percent for the Veteran’s service-connected IBS with diverticulitis, gastroesophageal reflux disease and hiatal hernia have not been met at any time during the rating period. Accordingly, there is no basis for staged ratings of the Veteran’s IBS pursuant to Fenderson, 12 Vet. App. at 126-27, and a higher rating must be denied. As the preponderance of the evidence is against the assignment of a higher initial rating, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Ver. App. 49 (1990). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND 1. Entitlement to service connection for chronic fatigue syndrome is remanded. Regarding the Veteran’s claim for entitlement to service connection for chronic fatigue syndrome, remand is required to provide the Veteran with a VA examination. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA’s duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. 38 U.S.C. § 5103 (d); 38 C.F.R. § 3.159. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159 (c) (4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third prong may be satisfied by lay evidence of continuity or equivocal or non-specific medical evidence). The Veteran has not yet been provided with an examination. Here, a June 2015 private treatment record reflects that the Veteran is positive for fatigue. Additionally, the Veteran’s DD Form 214 reflects that he served in Southwest Asia. Furthermore, the Veteran has reported that his fatigue is related to his active service. Thus, there is evidence of a current disability, an in-service event, and an indication that the disability may be associated with service. Accordingly, remand is required for an examination. 2. Entitlement to a TDIU is remanded. As noted above, the issue of entitlement to a TDIU has been raised as part and parcel to the Veteran’s claim for a higher initial disability rating. See Rice, 22 Vet. App. 447. As the RO has not yet considered whether the Veteran is entitled to a TDIU, the issue must be remanded to the RO for appropriate development and initial adjudication. The matters are REMANDED for the following action: 1. Send the Veteran a notification letter with respect to his claim for entitlement to a TDIU. The letter should include a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, and a VA Form 21-4142, Authorization and Consent to Release Information to VA, for completion and return to VA. 2. Complete any necessary development in view of the Veteran’s response to the above notification letter, to include the scheduling of any additional VA examinations deemed warranted. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of his fatigue. Provide a copy of this remand and the record for the examiner to review. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner must address the following: (a.) Provide a diagnosis for any disability related to the Veteran’s fatigue demonstrated since service, found on current examination or in the record. (b.) For each fatigue disability, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the condition had its onset during the Veteran’s service or is otherwise etiologically related to the Veteran’s service, to include his service in Southwest Asia. (c.) The clinician should also characterize the Veteran’s claimed fatigue as belonging to one of the following four disability patterns: an undiagnosed illness; a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology; a diagnosable chronic multisymptom illness with partially explained etiology/pathophysiology; or a disease with a clear and specific etiology. All appropriate medical testing should be conducted to rule out a diagnosis. 4. After completion of the above, review the expanded record, including the evidence entered since the most recent statement of the case, and determine whether service connection for chronic fatigue syndrome and entitlement to a TDIU may be granted. If any benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. The appropriate period should be allowed for response before the appeal is returned to the Board. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. G. LeMoine 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.