Citation Nr: 21062101 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 18-53 898 DATE: October 6, 2021 ORDER Entitlement to an initial 30 percent disability evaluation, but no higher, for service-connected irritable bowel syndrome (IBS) with diverticulitis is granted. FINDINGS OF FACT 1. For the entire appeal period, the Veteran's IBS with diverticulitis is manifested by, at worst, more or less constant abdominal stress with alternating diarrhea and constipation. 2. The current 30 percent rating for IBS with diverticulitis is the maximum schedular rating allowed. CONCLUSIONS OF LAW 1. Throughout the appeal, the criteria for an initial rating of 30 percent for IBS with diverticulitis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.114, Diagnostic Codes (DC) 7327-7319. 2. The criteria for a rating in excess of 30 percent for IBS with diverticulitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.114, Diagnostic Codes 7327-7319, 7301-7329. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1986 to November 1989 and from January 2003 to August 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The appeal was remanded in December 2020 for additional development. It has since been returned to the Board for further appellate consideration. The Board finds that there has been compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). In an August 2021 rating decision, the RO granted service connection for obstructive sleep apnea, effective July 4, 2014. The RO noted that this was considered a full grant of the benefits sought on appeal. The Veteran has not expressed disagreement with this rating decision. The August 2021 rating decision represents a full grant of the benefits sought, and the issue is no longer in appellate status. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). During the pendency on appeal the RO granted service connection for diverticulitis which has been included in the rating for irritable bowel syndrome (IBS), effective as of April 21, 2017. The RO increased the rating to 30 percent for the Veteran's service-connected IBS with diverticulitis from January 8, 2020. Because the RO did not assign the maximum disability rating possible, the appeal remains in appellate status and is properly before the Board. AB v. Brown, 6 Vet. App. 35 (1993). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life and employment. 38 C.F.R. § 4.10. Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev'd in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Where there is a question as to which of two disability 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. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). 1. Entitlement to an initial 30 percent disability evaluation, but no higher, for service-connected IBS with diverticulitis. The Veteran contends that his service-connected IBS warrants a compensable rating throughout the entire appeal period. See September 2021 statement. During the appeal period the Veteran's IBS with diverticulitis has been rated under Diagnostic Codes 8873-7319 or 7327-7319 depending on the time period. The Veteran's IBS was rated noncompensable under DCs 8873-7319 prior to January 8, 2020 and is rated 30 percent disabling under DCs 7327-7319 from January 8, 2020. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Diagnostic Code 8873 is used for tracking purposes when rating an undiagnosed illness for a Persian Gulf War veteran by analogy to one of the gastrointestinal diseases found in VA's Rating Schedule. The provisions of 38 C.F.R. § 4.114, Diagnostic Code 7319, pertain to irritable colon syndrome. Diagnostic Code 7327 directs VA to rate diverticulitis as for irritable colon syndrome, peritoneal adhesions, or ulcerative colitis, depending upon the predominant disability picture. Under 38 C.F.R. § 4.113, diseases of the digestive system, particularly within the abdomen, produce a common disability picture characterized by varying degrees of abdominal distress or pain, anemia and disturbances in nutrition. Accordingly, certain co-existing diseases do not lend themselves to separate ratings without violating the principle against pyramiding. 38 C.F.R. § 4.113. Further, 38 C.F.R. § 4.114 states that Diagnostic Codes 7301 through 7329, 7331, 7342, and 7345 to 7348 are not to be separately rated but, rather, a single evaluation is 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 elevations. 38 C.F.R. § 4.114. Under 38 C.F.R. § 4.114, Diagnostic Code 7319 a 10 percent rating is assigned for moderate irritable colon syndrome with frequent episodes of bowel disturbance with abdominal distress. The maximum schedular 30 percent rating is assigned for severe irritable colon syndrome with diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. For the reasons set forth below, and with consideration of the evidence of record, the Board finds that an initial 30 percent rating, but no higher, is warranted for IBS with diverticulitis prior to January 8, 2020; and a rating in excess of 30 percent is not warranted from January 8, 2020. A November 2017 private treatment record documents the Veteran reported abdominal discomfort every morning that included abdominal pain, constipation, diarrhea and rectal pain. Also noted was a prescription for medication to treat abdominal symptoms every four hours as needed. In a March 2018 statement, the Veteran reported diarrhea 3 to 4 times per week after eating large meals; therefore, he eats small quantities. He also reported abdominal distress with mild cramping during periods of loose bowel movements and fecal incontinence resulting in occasional involuntary bowel movements, necessitating wearing a pad. An April 2018 VA treatment records reflects the Veteran underwent a colonoscopy in April 2018, at which time he complained of painless rectal bleeding occurring for more than five years. He reported no abdominal pain or straining or constipation. A May 2018 VA examination documents a diagnosis of irritable bowel syndrome and diverticulitis. The Veteran reported two episodes daily of diarrhea and abdominal cramps. The examiner denied constipation. The examiner indicated the Veteran did not have episodes of bowel disturbance with abdominal distress. The examiner noted the Veteran did not have weight loss or malnutrition associated with his condition. The examiner also noted the Veteran's condition did not impact his ability to work. A December 2019 VA treatment record noted the Veteran experienced abdominal pain, loose stools and bright red blood. He also reported recurrent infections with diverticulitis and three bowel movements per day. A February 2020 VA treatment record reflects the Veteran has a history of postprandial diarrhea. He described experiencing non-urgent watery diarrhea, with lots of gas and borborygmi. A January 2020 VA examination documents a diagnosis of irritable bowel syndrome, diverticulosis, and hemorrhoids. The Veteran reported episodes of bleeding, intermittent abdominal cramping, diarrhea, and constipation. He described his abdominal pain 8/10 with sharp and tender pain. The examiner indicated the Veteran's irritable bowel syndrome causes him to alternate between constipation and diarrhea. The examiner also noted, the Veteran has frequent episodes of bowel disturbance with abdominal distress. The examiner noted his hemorrhoids are not related to diverticulitis or irritable bowel syndrome and is a separate disease process. The examiner noted the Veteran did not have weight loss or malnutrition associated with his condition. The examination report indicated the Veteran is a supervisor with TSA. The examiner determined the Veteran's irritable bowel syndrome with diverticulitis impacts his ability to work resulting in 2 to 4 weeks of work time lost in the last 12 months. The examiner explained the Veteran leaves work frequently due to the symptoms associated with his condition. Resolving all doubt in favor of the Veteran, the Board finds throughout the period on appeal he is entitled to a rating of 30 percent for his IBS with diverticulitis. The Veteran reported experiencing alternating diarrhea and constipation, as well as abdominal distress. The November 2017 private treatment documented symptoms of daily abdominal pain, constipation, and diarrhea. In his 2018 statement he continued to report that he regularly experienced diarrhea and episodes of bowel disturbance with abdominal distress. At the January 2020 VA examination there was abdominal cramping, diarrhea, and constipation. In addition to the regular nature of the diarrhea, there were multiple other symptoms that more nearly approximate constant abdominal distress, to include inadvertent stool accidents, necessitating wearing a pad and cramping. The Board finds that this more nearly approximates constant symptoms. A rating in excess of 30 percent is not permitted under Diagnostic Code 7319. The Board has also considered whether the Veteran is entitled to a higher rating under Diagnostic Codes 7301 to 7329 inclusive, 7331, 7342, and 7345 to 7348 inclusive. Pursuant to 38 C.F.R. § 4.114, ratings under Diagnostic Codes 7301 to 7329 inclusive, 7331, 7342, and 7345 to 7348 inclusive, will not be combined with each other; rather, 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. The Board notes that diverticulitis is rated as IBS, peritoneal adhesions, or ulcerative colitis, depending on the predominant disability picture. See 38 C.F.R. § 4.114, Diagnostic Code 7327. Based upon a review of the evidence, the Board finds that the preponderance of the evidence supports a finding that Diagnostic Code 7319 reflects the Veteran's predominant disability picture, severe alternating diarrhea and constipation, with more or less constant abdominal distress. The record has continuously reported no material weight loss or malnutrition. Moreover, there have been no adhesions, colic distension, or other symptoms which warrant a rating in excess of 30 percent under 38 C.F.R. § 4.114. David Gratz Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Braxton, 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.