Citation Nr: 21011941 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 16-33 517 DATE: March 3, 2021 ORDER Entitlement to an evaluation in excess of 30 percent for Crohn's disease from February 26, 2014 through February 3, 2019 is denied. Entitlement to an earlier effective date of February 4, 2019 for the 60 percent evaluation for Crohn’s disease is granted. Entitlement to an evaluation in excess of 60 percent for Crohn's disease from February 4, 2019 through June 14, 2020 is denied. FINDINGS OF FACT 1. Prior to February 4, 2019, the Veteran’s Crohn’s disease was manifested by no more than moderately severe symptoms with frequent exacerbations; the objective evidence did not establish a history of numerous attacks a year and malnutrition, or health only fair during remissions, productive of a more severe disability picture. 2. Beginning February 4, 2019, the evidence showed that the Veteran’s Crohn’s disease became productive of severe symptoms with numerous attacks, with evidence of nausea, pain, and blood after bowel movements on a frequent basis. 3. From February 4, 2019 to June 14, 2020, the Veteran’s Crohn’s disease was productive of “severe” symptoms with numerous attacks a year of nausea, constipation, diarrhea and abdominal distress, with his health only fair during remissions, and bi-weekly need for medication with malnutrition. However, his Crohn’s disease symptoms prior to June 2020 had not more nearly approximated a “pronounced” impairment, resulting in marked malnutrition, anemia, and general debility, nor with serious complications such as liver abscess. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 30 percent rating for Crohn’s disease prior to February 4, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.114, Diagnostic Code (DC) 7323. 2. The criteria for an effective date of February 4, 2019 for the evaluation of 60 percent have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.114. 3. The criteria for an evaluation in excess of 60 percent initial for Crohn’s disease from February 4, 2019 to June 14, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.114, DC 7323. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 2007 to July 2011. This matter comes before the Board of Veterans’ Appeals (Board) from a June 2015 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2019, the Veteran and his wife testified before the undersigned Veterans Law Judge (VLJ) at a Board hearing. A transcript is of record. These matters were previously remanded by the Board in September 2019 for updated VA medical records, a new examination, and an opinion regarding the severity of the Veteran’s condition, to include considering his medication usage. Following development, in an October 2020 rating decision, the RO assigned a 30 percent evaluation effective February 26, 2014; a 60 percent evaluation effective March 2, 2020; and 100 percent evaluation effective June 15, 2020 for the Veteran’s Crohn’s disease. Because higher ratings may be assignable during the relevant period and the Veteran is presumed to seek the maximum available benefit, the ratings prior to June 15, 2020 remain on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). However, the 100 percent rating is the highest benefit available, so fully resolved the appeal as of the date it was assigned. The Veteran has not raised any issues with the duty to notify or duty to assist in obtaining documentary evidence. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Thus, the Board need not discuss any potential issues in this regard. Further, neither the Veteran nor his representative has alleged any deficiency with the conduct of his Board hearing as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). In this regard, the Federal Circuit ruled in Dickens, 814 F.3d at 1361, that a Bryant hearing deficiency was subject to the doctrine of issue exhaustion as laid out in Scott, 789 F.3d at 1381. Thus, the Board need not discuss any potential Bryant problem because the Veteran has not raised that issue before the Board. The Veteran argued that his Crohn’s disease is more severe than the initial rating he had been assigned and requested higher ratings. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to active service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA should interpret reports of examination in light of the whole recorded history, reconciling the reports into a consistent picture so that the current rating may accurately reflect the elements of disability. See 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. See 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. See 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. see 38 C.F.R. § § 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. See 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where, as in the present case, entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Evidence obtained during, or leading up to the appeal period may indicate that the degree of disability increased or decreased during the pendency of the appeal. In such circumstances, VA’s determination of the “present level” of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the rating claim has been pending, and “staged” ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is a balance of positive and negative evidence regarding any material issue, the benefit of the doubt shall be given to the claimant. See 38 U.S.C. § 5107 (b). Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. See 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert, 1 Vet. App. at 54. The Board has reviewed all the evidence of record. Although the Board has an obligation to provide adequate reasons and bases supporting its decisions, there is no requirement that the Board discuss every piece of evidence in the record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board will summarize the relevant evidence, as deemed appropriate, and the Board’s analysis will focus on what the evidence shows, or fails to show, as to each claim. In this case, as noted above, the Veteran is currently assigned a 30 percent evaluation effective February 26, 2014; a 60 percent evaluation effective March 2, 2020; and 100 percent evaluation effective June 15, 2020. His disability has been rated in accordance with DC 7323 as ulcerative colitis. A 30 percent rating is warranted for moderately severe symptoms with frequent exacerbations. A 60 percent rating is warranted for severe symptoms with numerous attacks a year and malnutrition, the health only fair during remissions. A 100 percent rating is warranted for pronounced symptoms resulting in marked malnutrition, anemia, and general debility, or with serious complications, such as liver abscess. See 38 C.F.R. § 4.114, DC 7323. The words “slight,” “moderate” and “severe” as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are “equitable and just.” See 38 C.F.R. § 4.6. Pursuant to 38 C.F.R. § 4.113, certain diseases of the digestive system, “particularly within the abdomen, which, while differing in the site of pathology, produce a common disability picture characterized in the main by varying degrees of abdominal distress or pain, anemia, and disturbances in nutrition.” Consequently, certain coexisting diseases in this area “do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding as outlined in 38 C.F.R. § 4.14.” see 38 C.F.R. § 4.113. Ratings under DCs 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348, inclusive, will not be combined with each other. 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. See 38 C.F.R. § 4.114. Upon review of the record, the Board finds that the currently assigned 30 percent rating was appropriate for the period prior to February 4, 2019. However, the Board finds the evidence supports the 60 percent rating assigned by the RO from March 2, 2020, was warranted beginning February 4, 2019, but no higher rating was warranted from that date through June 14, 2020 – where he was then granted a total, 100 percent evaluation beginning June 15, 2020. Prior to February 4, 2019 For the initial period on appeal prior to February 2019, the Board finds that a rating greater than 30 percent is not warranted. The Veteran’s disability was assessed by VA examiners and he received VA medical care during this time period. First, in the June 2015 VA examination, it was noted that in 2013, he was diagnosed as having Crohn’s disease and was having watery diarrhea up to 6 times a day. He was started on Humira, and the examiner noted that this had helped considerably with the diarrhea, but he still reported occasional upper abdominal pain that was mild. It was also noted that he had fecal urgency in the morning with occasional loose stool, but only once a day. There were no additional episodes of bowel disturbances with abdominal distress, no weight loss, and no malnutrition. In April 2017, he underwent another VA examination. The examiner noted that he needs to stay on Humira as he still has the disease, which is still active and not in remission. The Veteran reported that he was taking Humira, but still had ongoing, daily symptoms, including, frequent bowel movements (hereinafter “BM”) – 2 at a minimal, 5-6 minimal loose stool – urgency, abdominal pain, every BM had blood on the tissue paper, pain in rectal area due to excessive bowel movements and wiping, and bloating/flatus. He also reported that his symptoms took time away from work for medical visits; he had to plan family trips around Humira injections; and he had frequent use of the bathroom. The examiner noted that continuous medication was required, and the Veteran had diarrhea, bloated belly, and sometimes felt very weak, very dizzy and like he will pass out. He also had constant episodes of bowel disturbance with abdominal distress, but no weight loss, malnutrition, tumors, or other physical findings. VA medical records also support the 30 percent rating during this time period. For example, a January 2015 colonoscopy revealed normal findings except for area of erythema in the cecum; and the biopsy revealed normal findings except for mild active colitis in ascending colon, distal transverse colon, and descending colon. In March 2016, he reported that he was feeling well overall with some mild increased urgency in the 1-2 days before his next Humira injection is due; whereas he typically had 1-2 BMs a day and his frequency was similar in the preceding days before the Humira injection. The impression noted was mild and chronic. In a follow up that month, he reported that his Crohn’s disease continued to be stable and was under control on Adalimumab. In January 2017, the Veteran reported continuing to have 1-2 BMs per day, usually one bowel movement per day, formed, with occasional urgency; but he denied hematochezia, tenesmus, accidently soiling, nocturnal soiling, abdominal pain, bloating, skin changes, or visual changes. He also reported having occasional blood on tissue paper, for the last few months. The physician noted he was in clinical and endoscopic remission with minimal signs of inflammation on the biopsy as noted on the last colonoscopy, and his records showed that overall, he was doing well. In February 2017, his doctor noted the Veteran’s Crohn’s disease had affected his daily life despite being in clinical remission, as he had to take medications and live with a chronic disease that can always flare. It was noted that the Veteran had learned to change his bowel habits and dietary habits to better control the symptoms. In a July 2017 appointment, he reported intermittent days with increased stool frequency, and reported that he noticed the increase occurred around the time his Humira medication was beginning to wane; but overall, he reported that he was doing well. In March 2018, he again reported occasional increased frequency and that the frequency tended to occur around the end of his injection cycle for Humira. He reported some feelings of lightheadedness, but overall he was doing well with active symptoms 1-2 days a week. In December 2018, he reported again an occasional increase in stool frequency but that he was overall doing well with 1-2 BMs a day. It was noted that his symptoms were rarely active with symptoms on a few days in the past 6 months. The Board also considered the Veteran’s June 2015 and July 2016 statements where he reported daily symptoms even with the use of Humira. In addition, in an April 2017 addendum note to the Veteran’s examination, he stated that when asked if his condition ever woke him up in the middle of the night, he had responded no, but wanted to add to his claim that immediately after his examination, this changed and he was woken up multiple times with abdominal pain and needing to use the restroom with great urgency. The Board notes that he is competent to describe his symptoms, and, based on the 2020 VA medical opinion, if he had not been taking his medication, he would have continued to have frequent diarrhea and possible additional symptoms at the time of the examinations. However, since the medical evidence to include the VA treatment records showed a long history of frequent diarrhea and anemia, any doubt has been resolved in his favor and an evaluation of 30 percent was granted from February 26, 2014, the date the claim was received. As such, prior to February 2019, the competent medical evidence does not establish that the Veteran’s Crohn’s disease was productive of a severe disability picture, as evidenced by numerous attacks per year and malnutrition, such that his health was only fair during periods of remission. Despite any fluctuations of his symptoms, his Crohn’s disease still does not satisfy the criteria for a higher rating. Accordingly, the appeal seeking a rating greater than 30 percent for the period on appeal prior to February 4, 2019 is denied. In offering this conclusion, the Board is aware that the Veteran reported flareups throughout the period and asserted worsening. However, there is no evidence of such a severe disability picture as to warrant a rating higher than 30 percent prior to February 2019, as accompanying treatment records do not establish a history of multiple attacks per year or malnutrition. Further, in the Veteran’s NOD, he requested a rating of 30 percent, which he is currently in receipt of prior to February 2019 (and higher ratings were considered as part of the remand findings). The Board has also considered whether a higher rating is warranted under alternate diagnostic codes relating to disabilities of the digestive system. The Board notes that VA regulations establish that a single rating 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. Here, the evidence establishes the Veteran’s Crohn’s disease as the predominant disability that does not warrant elevation to the next higher evaluation per the applicable rating criteria. The other diagnostic codes that provide for a higher rating contemplate disabilities and symptomatology not demonstrated in the competent evidence of record. Also, to reiterate, DCs 7301-7329, 7331, 7342, and 7345-7348 cannot be combined. See 38 C.F.R. § 4.114. Thus, a rating in excess of 30 percent prior to February 2019 is not warranted. In sum, the evidence reflects that the severity of the symptoms and disability picture does not warrant a rating in excess of 30 percent for Crohn’s disease under DC 7323 prior to February 2019. While the Veteran’s reported symptoms may be considered severe, with numerous attacks a year, including at times multiple episodes of bowel movements a day, at no point during the period on appeal did he endorse malnutrition nor is there any indication of malnutrition, which is required for a 60 percent rating. See 38 C.F.R. § 4.114, DC 7323; Johnson v. Wilkie, 30 Vet. App. 245 (2018) (addressing successive and conjunctive rating criteria). Therefore, prior to February 4, 2019, a 30 percent rating, but no higher, is warranted, and a higher rating is denied. February 4, 2019 to June 14, 2020 The Board finds that beginning February 4, 2019, it was factually ascertainable that the Veteran’s Crohn’s disease had increased in severity to more nearly approximate the criteria for a 60 percent evaluation. Specifically, on February 4, 2019, the records showed since the Veteran’s last clinic appointment in December 2018 (discussed above), he had developed 2 weeks of increased stool frequency and diarrhea, whereas he typically used to have 1-2 BMs per day which were soft, but now was having 6-7 loose stools per day with associated nausea and epigastric pain. He also reported having blood on toilet paper when wiping. He stated that on a normal day, he reported now having 2-3 BMs a day. His Humira levels also were noted to be high. In March 2019, he underwent a colonoscopy due to the February 2019 worsening symptoms and development of antibodies, with the final pathology report consistent with chronic active colitis in the transverse colon and cecum as well as chronic colitis in the left colon and rectum for which he continues to be on Humira. The gastroenterologist stated he needs to remain on Humira, or his condition might become worse again. During the March 2019 Board hearing, the Veteran and his wife also provided sworn testimony that collaborated this medical record. For example, he reported being on continuous bi-weekly medication and that he was having a lot of abdominal pain with constant bowel movements during flareups which caused him to have to miss work from time to time and miss out on social activities as he was dependent on his medication. He testified that in spite of the medication, he still has flareups that include symptoms of abdominal pain, increased frequency of needing to use the bathroom, and needing to be near a bathroom. He reported that his doctors have told him that if he were to stop taking his Humira, his symptoms would get worse or cause a negative reaction. He reported that he has to watch his diet, so it does not trigger his symptoms, and that he always has bleeding and a loss of appetite. The Veteran’s wife testified that she has seen him doubled over in pain and that he is constantly in the bathroom. She stated that when he is home, he is in the bathroom at least five times a day, and when they are not home (traveling) they have to work around his Humira. Finally, she stated that his weight does fluctuate because sometimes some certain foods do trigger it, so he does not always eat as he is afraid of being in pain again. Thereafter, in April 2019, he reported 1-3 BMs a day without significant epigastric pain, abdominal pain, or nausea/vomiting, but reported blood after wiping. His overall assessment was noted to be occasionally active with symptoms occurring 1-2 days a month. In October 2019, he reported an average of 2 BMs a day without significant pain or nausea and vomiting, with blood after wiping. However, he also reported that he has increased symptoms with up to 6 loose BMs a day which occurs near the end of his 2-week cycle of medications and goes away within a 1-2 days. He also reported constipation. In the December 2019 VA examination, he reported ongoing gastrointestinal symptoms with severe exacerbations at least 2-3 times a week with abdominal cramping, pain, diarrhea, and constipation. He also reported having 3-7 loose BMs a day with blood, and that he has to miss work due to the severe abdominal pain which interferes with his sleep. He needs continuous medication to control the condition, and his symptoms include diarrhea, alternating diarrhea and constipation, anemia, and nausea. The nausea was noted to occur 1-2 times a week with flareups. He had frequent episodes of bowel disturbances with abdominal distress with 7 or more exacerbations or attacks in the last 12 months. He did not have weight loss, but it was noted that he did have malnutrition in the form of a vitamin D deficiency. Finally, the examiner noted that the Veteran’s Crohn’s disease with exacerbations required him to rest at home when he had severe abdominal pain and diarrhea. In January 2020, he was seen in urgent care with severe epigastric pain and nausea. In March 2020, he reported an average of 2 BMs a day without significant pain or nausea/vomiting with blood after wiping. He again reported bad days having increased symptoms with up to 6 loose BMs a day. He also reported constipation with increased bloating. It was also noted that he had a 30-pound weight loss. In June 2020, he reported doing well overall until a month prior when he developed an increase in BMs with frequency up to 4-5 loose stools a day without blood. He also reported nocturnal stools and some crampy abdominal pain that had worsened. Given the above, the Board concludes that a 60 percent rating, but no higher, under DC 7323 beginning February 4, 2019, but no earlier, to June 14, 2020 is warranted. The evidence reflects that the Veteran’s Crohn’s disease had been severe with numerous attacks per year with malnutrition in the form of a vitamin D deficiency. The evidence also reflects that he required biweekly medication treatment and he experienced bouts of diarrhea, nausea, abdominal pain and constipation on a frequent basis, as well as weight loss. The Veteran’s health was merely fair during remissions. The Board finds that these symptoms more approximately reflect symptoms commensurate with a 60 percent disability rating. The Board has considered whether a higher rating is warranted under alternate diagnostic codes relating to disabilities of the digestive system. Here, the evidence establishes the Veteran’s Crohn’s disease as the predominant disability that does not warrant elevation to the next higher evaluation per the applicable rating criteria. The other diagnostic codes that provide for a higher rating contemplate disabilities and symptomatology not demonstrated in the competent evidence of record. Also, to reiterate, DCs 7301-7329, 7331, 7342, and 7345-7348 cannot be combined. See 38 C.F.R. § 4.114. The Board also considered whether the Veteran’s Crohn’s warranted a 100 percent rating prior to June 2020. However, there is no evidence in the record prior to June 15, 2020 that the Veteran experienced marked malnutrition and anemia, or serious complication such as liver abscess, as is required for a 100 percent rating under DC 7323. Indeed, while the Veteran had mild anemia, there is no evidence that the Veteran had serious complications like liver abscess due to his Crohn’s disease or marked malnutrition and general debility prior to June 2020. For those reasons, a 60 percent rating, but no higher, is warranted under DC 7323 beginning February 4, 2019, but no earlier, to June 14, 2020. In making this determination, the Board considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 60 percent for Crohn’s disease for the period prior to June 15, 2020, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G.Hoy, 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.