Citation Nr: 21069397 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 18-38 144 DATE: November 18, 2021 ORDER Entitlement to a certificate of eligibility for financial assistance in acquiring specially-adapted housing or a special home adaptation grant is dismissed. Entitlement to service connection for degenerative arthritis is denied. Entitlement to a disability rating in excess of 10 percent for service-connected irritable bowel syndrome (IBS) is denied. Entitlement to a temporary total evaluation for hospitalization for a service-connected disability under 38 C.F.R. § 4.29 from January 13, 2015 to June 9, 2015. REMANDED Entitlement to a disability rating in excess of 10 percent for service-connected lumbar spine strain with degenerative changes and L1 compression fracture (a low back disability) is remanded. Entitlement to a disability rating in excess of 30 percent for a service-connected bilateral foot disability is remanded. Entitlement to a disability rating in excess of 70 percent for service-connected posttraumatic stress disorder (PTSD) with depression is remanded. Entitlement to a total disability rating based on individual unemployability is remanded. Entitlement to special monthly compensation (SMC) based on loss of use is remanded. Eligibility to Dependents' Educational Assistance (DEA) benefits under 38 U.S.C. Chapter 35 is remanded. FINDINGS OF FACT 1. At his June 2021 hearing, the Veteran withdrew his appeal as to the issue of entitlement to a certificate of eligibility for financial assistance in acquiring specially-adapted housing or a special home adaptation grant. 2. The Veteran is already service-connected for a lumbar spine strain with degenerative changes and L1 compression fracture; he does not have a separate and distinct arthritis disability affecting the back due to service for which he is not already compensated. 3. The Veteran's IBS has more nearly approximated no more than moderate symptoms throughout the period on appeal. 4. For the time period from January 13, 2015 to June 9, 2015, the Veteran did not require hospital treatment in excess of 21 days for any service-connected disability. CONCLUSIONS OF LAW 1. The criteria for withdrawal of entitlement to a certificate of eligibility for financial assistance in acquiring specially-adapted housing or a special home adaptation grant have been satisfied. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for service connection for degenerative arthritis have not been satisfied. 38 U.S.C. §§ 1110, 1112, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317. 3. The criteria for a disability rating in excess of 10 percent for service-connected IBS have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.114, Diagnostic Code 7319. 4. The criteria for entitlement to a temporary total evaluation for hospitalization for a service-connected disability under 38 C.F.R. § 4.29, from January 13, 2015 to June 9, 2015, have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.29. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 2006 to February 2010, to include service in Iraq. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing with the undersigned Veterans Law Judge in June 2021. A transcript of the hearing is of record. 1. Entitlement to a certificate of eligibility for financial assistance in acquiring specially-adapted housing or a special home adaptation grant is dismissed. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In this case, the Veteran withdrew his appeal as to the issue of entitlement to a certificate of eligibility for financial assistance in acquiring specially-adapted housing or a special home adaptation grant at his Board hearing with the undersigned. The withdrawal request was discussed at the hearing and was acknowledged on the record. The withdrawal request was explicit, unambiguous, and done with a full understanding of the consequences. As there remain no allegations of errors of fact or law for appellate consideration regarding the issue of entitlement to a certificate of eligibility for financial assistance in acquiring specially-adapted housing or a special home adaptation grant, the Board does not have jurisdiction over the issue, and it is dismissed. 2. Entitlement to service connection for degenerative arthritis is denied. The Veteran seeks service connection for degenerative arthritis. While not specifying which joint(s) he was claiming in his initial service connection claim, the Veteran stated to the undersigned during his Board hearing, as well as to a VA examiner in January 2018, that he is concerned about "painful joints" in his back. The Board notes, however, that the February 2014 rating decision that denied the Veteran's claim for an unspecified degenerative arthritis disability also granted service connection for a lumbar spine strain with degenerative changes and L1 compression fracture, and the probative evidence of record is against a finding that the Veteran has an arthritis disability separate and distinct from the low back disability for which he is already service-connected. The Veteran was afforded a VA back examination in January 2018 where he was diagnosed with a lumbosacral strain, degenerative arthritis of the spine, and intervertebral disc syndrome. The examiner opined that the Veteran's degenerative changes in the facet joints is already part of the low back disability for which he is service-connected, and that this service-connected disability is one with a clear and specific etiology and diagnosis for the purposes of 38 C.F.R. § 3.317. There is no medical evidence in significant conflict with this opinion. Further, to service connect arthritis in multiple joints separately, and in addition to the Veteran's rating for the low back, would constitute pyramiding in violation of 38 C.F.R. § 4.14. The Board has considered the Veteran's statements, to include his assertions that he has a degenerative arthritis disability that is related to service and not already compensated. As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., pain; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not, however, competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. In any event, the Board ultimately assigns greater probative weight to the medical evidence of record, to include the opinion rendered by a trained medical professional based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. Thus, the preponderance of the evidence is against the Veteran's claim, and service connection must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to a disability rating in excess of 10 percent for IBS is denied. The Veteran was granted service connection for IBS in June 2015 and was assigned a 10 percent disability rating. He asserts that he severity of his disability warrants a higher rating. For the reasons that follow, a higher rating is not warranted. Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. The Veteran's service-connected IBS has been rated under the provisions of Diagnostic Code 7319 for irritable colon syndrome. 38 C.F.R. § 4.114. Under Diagnostic Code 7319, a 10 percent rating contemplates moderate irritable colon syndrome with frequent episodes of bowel disturbance with abdominal distress. A maximum 30 percent rating contemplates severe irritable colon syndrome with diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. Id. Turning to the evidence, a VA examination was afforded to the Veteran in May 2015 for his initial service connection claim. He reported his symptoms as one-to-two days of no bowel movements followed by one-to-two weeks of diarrhea/loose stool six-to-seven times per day, with no blood or mucus, but with abdominal cramping usually relieved by a bowel movement. The Veteran denied the need for continuous medication to control his condition or any surgical intervention. The VA examiner described the Veteran's disability as manifesting frequent episodes of bowel disturbances with abdominal distress, with seven or more exacerbations and/or attacks within the previous year. No other pertinent physical findings, complications, conditions, signs, or symptoms were noted. An additional examination was afforded in January 2018, where the Veteran described four-to-five stools per day, all semi-formed, which tend to occur in the morning. He was noted to not require continuous medication, practiced no dietary modifications, and consumed quite a bit of caffeine which the examiner noted may be somewhat contributing to his frequent bowel movements. He continued to deny concerning features which might prompt a colonoscopy, such as blood in his stool, etc. While the examiner noted that the Veteran's condition manifested as more or less constant episodes of bowel disturbance with abdominal distress, the examiner went on to note the following regarding any episodes of exacerbations and/or attacks: "[The Veteran] has essentially daily frequent/loose stools; prior examiner checked the '7 or more episodes' category as descriptor for this, though I think this is essentially Veteran's chronic symptomatology and does not really amount" to an exacerbation. The examiner also noted that the Veteran does not describe much in the way of abdominal pain or cramping, and thus, was unable to quantify any actual exacerbations. The examiner concluded that he found the Veteran's prior rating level as reasonable and did not find any evidence of change in the Veteran's condition since prior exams. The Board interprets this opinion to mean that the Veteran's intestinal condition had not actually changed in severity compared to the previous VA examinations, and that his current, 10 percent rating remained appropriate despite the examiner checking the box on the examination report indicating more or less constant abdominal distress. This determination is also supported by his most recent VA examination for this condition in August 2020. At that time, the Veteran reported loose stools four-to-five times per day with no treatment or continuous medication, and the examiner specifically opined that the Veteran's symptoms had been the same since the previous examination. Notably, the examiner ultimately determined that the Veteran did not have any episodes of bowel disturbance with abdominal distress or exacerbations or attacks of his intestinal condition, and no other pertinent physical findings, complications, conditions, signs, or symptoms were indicated. The examiner stated that the Veteran's history is not actually consistent with IBS, which appears to be a self-diagnosis, as he describes only loose stools. Instead, the examiner noted the Veteran's reported history of heavy alcohol consumption, including at the time of his in-service complaints, and opined that it is more likely that the Veteran's loose stools are secondary to alcohol intake. The remaining evidence, including medical treatment records, is not in conflict with the above findings upon examination. Further, at his recent hearing before the undersigned, the Veteran did not describe symptoms that suggest a higher rating may be warranted as he noted only loose stools and no other complications. Based on the above, the evidence is against a finding that the Veteran's intestinal condition (which may not actually be IBS and instead related to his alcohol consumption) more closely approximates severe symptoms of diarrhea or alternating diarrhea and constipation, with more or less constant abdominal distress. All examiners, as a whole, essentially determined that the Veteran's condition was unchanged since his initial rating. Thus, a 30 percent rating is not applicable in this case. 38 C.F.R. § 4.114, Diagnostic Code 7319. The Board has considered whether a separate or higher rating can be awarded under any other diagnostic code but has found none, to include Diagnostic Code 7332 as neither the medical record nor the Veteran's statements suggest any impairment of sphincter control. The Board is sympathetic to the Veteran's lay statements that his disability is worse than currently evaluated and those statements have been considered. The Veteran 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 have 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 disability is evaluated. The medical and lay evidence has been assessed by the Board in determining the overall disability rating. 3. Entitlement to a temporary total rating is denied. A total disability rating will be assigned when it is established that a service-connected disability has required hospital treatment in a VA or an approved hospital for a period in excess of 21 days or hospital observation at VA expense for a service-connected disability for a period in excess of 21 days. 38 C.F.R. § 4.29. In this case, the Veteran seeks a temporary 100 percent evaluation for hospitalization for the period between January 13, 2015 to June 9, 2015. The record indicates that the Veteran was admitted into the Southern Oregon Rehabilitation Center and Clinics (SORCC) in White City, Oregon for his service-connected acquired psychiatric disorder. However, the Veteran's treatment did not constitute the type of inpatient treatment necessary to satisfy 38 C.F.R. § 4.29. While a total rating could be appropriate if the Veteran required hospitalization during his stay in excess of 21 days, the medical record indicates that the treatment the Veteran received would be best described as outpatient treatment, not hospitalization, and is open to all veterans in the area, not just those living at the domiciliary. The Veteran retained his general independence and required only occasional office visits to mental health providers for individual and group sessions. At no point in the medical records did it indicate that the Veteran had intensive and closely monitored therapy for a period of time in excess of 21 days. As such, a temporary 100 percent evaluation for the period between January 13, 2015 to June 9, 2015 is denied. REASONS FOR REMAND 1. Entitlement to increased ratings for service-connected bilateral foot, a low back, and PTSD disabilities. The Veteran was last evaluated by VA examiners for his service-connected bilateral foot, low back, and PTSD disabilities in January 2018. During his hearing before the undersigned, he asserted that these disabilities have increased in severity. As such, new VA examinations should be afforded to determine the current nature and severity of these disabilities. 2. Entitlement to a TDIU, SMC based on loss of use, and DEA benefits. The Veteran's remaining claims of entitlement to a TDIU, SMC based on loss of use, and DEA benefits are inextricably intertwined with the above increased ratings claims being remanded and, as such, adjudication of these issues must be deferred. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are therefore REMANDED for the following actions: 1. Ask the Veteran to identify all outstanding treatment records relevant to his remaining claims. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of their unavailability. 2. After records development is completed, schedule the Veteran for appropriate VA examinations to determine the current symptoms, level of severity, and functional impairment associated with his bilateral foot, low back, and PTSD disabilities. The claims file should be reviewed by the examiner(s). To the extent possible, the examiner(s) should comment on any functional impairment resulting from the Veteran's service-connected bilateral foot, low back, and PTSD disabilities that may affect employability. 3. Then, the record should again be reviewed. If any benefit sought on appeal remains denied, to include the claims for entitlement to a TDIU, SMC based on loss of use, and DEA benefits, the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Scarduzio, 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.