Citation Nr: 21004538 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 15-01 035 DATE: January 27, 2021 ISSUES 1. Entitlement to a disability rating in excess of 30 percent for service-connected Crohn’s Disease and Gastroesophageal Reflux Disease (Crohn’s). 2. Entitlement to total disability based on individual unemployability due to service-connected disabilities (TDIU). REMANDED Entitlement to a disability rating in excess of 30 percent for service-connected Crohn's Disease and Gastroesophageal Reflux Disease (Crohn's) is remanded. Entitlement to total disability based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from July 1998 to August 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal. By way of background, the Veteran was granted entitlement to service connection for irritable bowel syndrome in August 2004 at 10 percent disabling. A rating decision from January 2008 continued the 10 percent rating but changed the Veteran’s rating to that of Crohn’s Disease (previously rated as irritable bowel syndrome). The Veteran then filed a claim for an increased disability rating for his service-connected Crohn’s Disease, which was received in May 2012. A rating decision from October 2012 denied the increased rating, and the Veteran filed a timely Notice of Disagreement (NOD) in February 2013. He was issued a statement of the case (SOC) in October 2014, and the Veteran filed a timely VA Form 9 in December 2014. In the Veteran’s Form 9, he requested a hearing, and his claim was eventually certified to the Board in June 2016. The Veteran then appeared before a Veterans Law Judge, who has since retired, in a Travel Board hearing in November 2018 to present testimony on the issues on appeal. A transcript of the hearing has been associated with the Veteran’s claims file. In May 2019, the Board remanded this matter for further development and adjudication. Upon review of the Veteran’s claim file, the Board finds that there has not been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). When a Veteran files a claim for an increased rating, they are presumed to be seeking the maximum benefit under any applicable theory, including total disability rating based on individual unemployability (TDIU). See generally Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447. When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to TDIU will be considered to have been raised by the record as “part and parcel” of the underlying claim. Id. at 453-54. In this case, the Veteran has asserted that he has lost substantial time at work due to his service-connected disabilities, to include his service-connected Crohn’s Disease. Therefore, the issue of entitlement to TDIU has been raised and is before the Board. The Board finds that additional evidentiary development is required before the claims on appeal are adjudicated. 1. Entitlement to a disability rating in excess of 30 percent for service-connected Crohn's Disease and Gastroesophageal Reflux Disease (Crohn's) is remanded. The Veteran has claimed that his Crohn’s disease is worse than currently rated. During the Veteran’s Board hearing in November 2018, the Veteran testified that his disability had worsened since the previous VA examination in October 2014. The Veteran described a number of symptoms which he experiences, including the following: I was hospitalized eight separate times. I was anemic. I was vitamin D deficient, and I’ve had supplementation for all that stuff … the medication that they’ve given me has controlled the amount of the flare ups that I do have, but I do consistently have pain, diarrhea, distension, tenderness in my abdomen, and I do still have approximately three to six bowel movements a day often included with blood and mucous. The Veteran later described the frequency and severity of his flare ups, stating that he is distended in my abdominal. I have pain in my lower groin area. It feels like my appendix is going to rupture. Nausea and vomiting associated with it as well and fever and chills, and then my diarrhea will increase to maybe nine or ten bowel movements a day … and that happens maybe twice a month … I only eat one time a day and that’s typically in the evening because generally after I eat, I mean, within 20 minutes or half an hour, I have to use the restroom. Finally, during the Veteran’s hearing, the Veteran’s Representative argued that the Veteran’s service-connected Crohn’s has a number of complicated symptoms that do not squarely fit within the currently assigned Diagnostic Code of 7346-7323. The Veteran’s Representative specifically stated that DC 7328 may also be applicable, as well as DC 7301, and that the Veteran would like to be considered under these diagnostic codes through his claim of an increased rating. See November 2018 Hearing Transcript. The Veteran is competent to report the symptoms he experiences, such as those associated with his Crohn’s disease, as well as his stomach and bowel pain/discomfort. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). 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 importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). As indicated above, the Veteran’s claim was remanded by the Board in a Decision from May 2019. As the Veteran had claimed that his disability had worsened, the Veteran was to be scheduled for a VA examination to assess the current nature and severity of his service-connected Crohn’s Disease. See further, Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007) (A new examination is appropriate when there is an assertion (and indication) of an increase in severity since the last examination). Importantly, the RO was also to make an additional determination regarding the Veteran’s supplemental claims that stem from his increased ratings claim, including whether or not the Veteran had an additional disability under other Diagnostic Codes. Specifically, Board directed the RO to consider Diagnostic Codes 7301 and 7328, in addition to Diagnostic Code 7323, for which he is currently rated. As an initial matter, the Board finds that RO has not fully complied with the Board’s prior remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). While the RO scheduled the Veteran for a VA examination, which occurred in January 2020, the RO did not make a supplemental determination as to the Veteran’s claim under other diagnostic codes. A supplemental statement of the case (SSOC) from July 2020 only indicates that the Veteran has been evaluated under the current diagnostic criteria. To be sure, the Veteran’s claims file includes a deferred rating decision from September 2020, however in that decision the RO states that the Veteran “appears to be attempting to initiate a claim for service connection for conditions secondary to his service-connected GERD/Crohn’s.” This is contrary to the Board’s May 2019 directives, in that various other diagnostic codes were to be considered following the VA examination. The Board also notes that a list of these potentially-applicable diagnostic codes has been provided by the Veteran in correspondence from August 2020. As there is no indication that the Veteran’s claims were further considered by the RO, the Board finds that the remand directives were not appropriately followed, and the Veteran’s claim must be remanded for additional adjudication. The Board also recognizes that the Veteran’s claim was remanded for a VA examination, which occurred in January 2020. During the exam, the Veteran was seen in person, and his claims file was reviewed. During clinical testing, the examiner reviewed several of the Veteran’s symptoms, including the Veteran’s “occasional episodes” of bowel disturbances, and “right lower quadrant pain lasting 15-90 minutes, relieved by a bowel movement.” The examiner indicated that the Veteran had gone from a baseline weight of 275 lbs. to 242 lbs., but denied that the Veteran had any malnutrition, serious complications, or other general health effects. No discussion was made of the Veteran’s reported flare ups, nor his limitation to eating once per day, nor his reported vitamin deficiency. Importantly, in the Board’s May 2019 remand directives, the examiner was to specifically opine as to whether the Veteran’s Crohn’s disease had become “severe; with numerous attacks a year and malnutrition, the health only fair during remissions,” or if it had otherwise became “pronounced; resulting in marked malnutrition, anemia, and general debility, or with serious complication as liver abscess.” The Board remand further requested the examiner to discuss whether other related diagnostic codes were potentially applicable. While there is nothing to doubt the competence or credibility of the January 2020 VA examiner, the Board finds that another VA examination is required. First, the examiner did not purport to answer the direct questions that were asked, as they were directed to indicate if the Veteran’s Crohn’s disease and the associated symptoms were “severe” or “pronounced.” These questions are copied into the examination report but are not directly addressed. Furthermore, the full extent of the Veteran’s reported symptoms are not present within the exam, to include those symptoms whereby he described malnutrition (vitamin deficiency, inability to eat more than once per day, etc.) In addition, there is no mention as to the Veteran’s reported flare ups, which he testified are distinct from his more routine bowel pain and discomfort. Finally, in correspondence from August 2020, the Veteran reported that his disability had further deteriorated, and that the January 2020 VA examination contained some inaccuracies, since he is “now at 225 [lbs.] and continue to lose weight.” This is different than the 245 lbs. found by the examiner. Importantly, when VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). Also, where the Veteran claims that a disability is worse than when originally rated, VA must provide a new examination. See Olsen v. Principi, 3 Vet. App. 480, 482 (1992). Therefore, the Board finds that the Veteran should be afforded a new VA examination to determine the current nature and severity of his service-connected Crohn’s Disease and GERD See, Weggenmann v. Brown, 5 Vet. App. 281 (1993); see also, Snuffer v. Gober, 10 Vet. App. 400 (1997) (a Veteran is entitled to a new examination where there is evidence that the condition may have worsened since the last examination). Importantly, and as is consistent with the Board’s previous remand directives from May 2019, the Veteran is to be scheduled for a VA examination, whereby an appropriate professional takes into considerations all of the Veteran’s reported symptomatology. Upon a determination that the exam is adequate, the RO is to consider additional diagnostic codes, with specific attention drawn to the list that the Veteran has identified in his August 2020 statement. A statement must be included within the Veteran’s claims file that these additional diagnostic codes have been considered. 2. Entitlement to total disability based on individual unemployability due to service-connected disabilities (TDIU) is remanded. The Veteran has claimed that his service-connected disabilities have impacted his ability to work. In the Veteran’s VA Form 9, he wrote that he hoped that a “higher rating” for his service-connected Crohn’s Disease will also consider additional provisions “for when my conditions force me to be unable to work.” The Veteran subsequently testified in November 2018 that the medication that he takes for his stomach disability and Crohn’s Disease has forced him to have “taken so much time off of work consistently because of my illnesses.” He also testified that he had to leave his previous employment as a police officer, due to his bowel irregularities. Specifically, he stated that he was “missing time at work … I left that type of employment. I couldn’t get my equipment off fast enough to use the restroom and I couldn’t properly defend myself … if I had an attack when I was in a bad situation.” The Veteran also testified that he was currently working “in an office setting,” however his constant “flare ups” have forced him to miss substantial time. In a statement received by VA in August 2020, the Veteran wrote that he has “missed countless hours of work due to medical issues related to my GI issues and from the side effects of treatment.” The Veteran is competent to report the symptoms he experiences, such as those associated with his bowel disability. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 38 C.F.R. § 4.16. As stated in the introduction, a request for a TDIU, even when expressly raised by a Veteran, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Hence, the Veteran’s claim for an increased disability rating for his service-connected Crohn’s is intertwined with and includes consideration of whether TDIU is warranted under the provisions of 38 C.F.R. § 4.16 (a). As noted above however, the claim for an increased disability rating for Crohn’s is being remanded herein. Thus, the claim of TDIU is inextricably intertwined with that outstanding claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Therefore, the claim for a TDIU must be remanded pending the development and readjudication of the increased rating appeal. On remand, the RO should also send the Veteran a VA Form 21-8940 to determine his current and past employment history, which has not yet been associated with the claims file. The matters are REMANDED for the following action: 1. The RO should send the Veteran a letter requesting he provide information relevant to the determination of entitlement to a TDIU, including information regarding his current and past employment history, educational background, and any past work-related limitations imposed by his service-connected disabilities. He should be provided VA Form 21-8940 in conjunction with this request. 2. Next, please schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the current nature severity of his service-connected Crohn’s Disease with GERD. The examiner must review the Veteran’s claims file and elicit a full history from the Veteran regarding the symptoms of his bowel disability to determine its current manifestations and severity. All necessary tests and studies, as identified under Diagnostic Code 7323, should be accomplished, and all pertinent symptoms and clinical findings should be reported in detail. Other Diagnostic Codes should be considered during clinical testing, including, but not limited to, DC 7328 (resection of small intestine), DC 7330 (external gastrointestinal fistula), DC 7338 (inguinal hernia), and/or 7346 (hernia hiatal). The examiner is asked to consider the lay statements as provided by the Veteran, including the symptoms outlined during his November 2018 Board Hearing, as well as his August 2020 statement, and that the Veteran has indicated that his Crohn’s disease results in flare ups. Should the examiner state that he or she is unable to offer such an opinion without resorting to speculation based on the fact that the examination was not performed during a flare up, the examiner is directed to ascertain information as to the frequency, duration, characteristics, severity, or functional loss. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The examiner is reminded that the Veteran is competent to report his symptoms. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 3. Following the completion of the VA examination, and a determination that the examination conducted was adequate, the RO is to specially consider the Veteran’s claims of increased severity to his service-connected bowel disability as it relates to other diagnostic codes. See further August 2020 Statement in Support of Claim. A note should be added to the Veteran’s claims file, indicating that further consideration of potentially other applicable diagnostic codes was completed. 4. Readjudicate the Veteran’s claims, including the inextricably intertwined claim for entitlement to TDIU, after ensuring that any other appropriate development is complete, is warranted. If the benefits sought on appeal are not granted, the Veteran and his Representative should be furnished a supplemental statement of the case (SSOC) and provided an appropriate opportunity to respond before the claims files is returned to the Board for further appellate action. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Mulrain, 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.