Citation Nr: 21013258 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 10-37 384 DATE: March 9, 2021 ORDER Entitlement to a rating in excess of 30 percent, including on an extraschedular basis, for irritable bowel syndrome (IBS) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due solely to IBS on an extraschedular basis is denied. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran exhibited severe IBS, defined as stomach pain, nausea, vomiting, and diarrhea, and he is currently receiving the maximum schedular rating assignable under Diagnostic Code 7319 for his IBS. 2. Throughout the appeal period, the Veteran has either been employed or in receipt of a combined 100 percent rating; the preponderance of the evidence is against a finding that he has been rendered unable to secure or follow a substantially gainful occupation as result of his service-connected IBS alone, the award of extra-schedular TDIU is not warranted. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 30 percent, including on an extraschedular basis, for IBS have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.87, 4.114, Diagnostic Code 7319 (2020). 2. The criteria for entitlement to a TDIU due solely to IBS on an extraschedular basis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 3.341, 4.16(b) (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from November 1983 to November 1987, January 1991 to April 1991, and from September 1996 to July 1997. In October 2014, the Board granted a 30 percent rating, and no higher, for IBS prior to April 3, 2013, and denied a rating in excess of 30 percent thereafter. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a February 2016 memorandum decision, the Court vacated the Board’s decision on the IBS rating and remanded the matter to the Board to address how the Veteran’s missed work and other possible effects of his disability on employment are contemplated by the rating schedule. In September 2016, the Board referred the issue of an increased rating for IBS to the Director of VA’s Compensation and Pension Service for consideration of an extraschedular evaluation pursuant to 38C.F.R. §3.321(b)(1). In February 2017, the Director issued a determination that entitlement to an increased evaluation for IBS on an extraschedular basis was not warranted under 38 C.F.R. § 3.321(b)(1). Most recently in December 2019, the Veteran’s claims were remanded by the Board. The Board determined that the Veteran’s claims should be considered for extraschedular consideration. In an October 2020 report, the Director of Compensation Service determined that the cumulative medical evidence did not support an extraschedular TDIU entitlement based solely on effects of IBS. 1. Entitlement to a rating in excess of 30 percent, including on an extraschedular basis, for IBS The Veteran seeks a higher rating for his service-connected IBS. He is in receipt of the maximum schedular rating for his service-connected IBS. He has requested consideration of a higher rating on an extraschedular basis. The Veteran’s IBS has been rated at 30 percent from November 11, 2008. The Veteran’s IBS is rated under 38 C.F.R. § 4.114, Diagnostic Code 7319, irritable colon syndrome (spastic colitis, mucous colitis, etc.). A 30 percent evaluation is warranted for severe; diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress and is the highest available rating under Diagnostic Code 7319. In relation to his IBS disability, the Veteran has reported stomach pain, nausea, vomiting, and diarrhea. The Veteran has reported that his stomach pain is worse with stress and keeps him from sleeping at night. He also reported problems with lifting, squatting, bending, and standing due to stomach pain. During his 2008 VA examination, the Veteran reported experiencing daily nausea, lower quadrant abdominal pain, and episodic diarrhea, occurring one to three days per week, and during his 2010 VA examination, the Veteran reported experiencing constant abdominal stress that was exacerbated by stress and anxiety. In the Veteran’s November 2010 testimony, he reported severe occupational impairments caused by his IBS, including missing work up to twice a week. In addition to his ongoing treatment for persistent nausea, frequent vomiting, daily abdominal pain, and intermittent diarrhea and constipation, the Veteran received VA emergent care for abdominal pain in May 2011 and September 2012. During his October 2012 Board hearing, the Veteran testified that he experienced vomiting, cramps, pain, and daily nausea. In the Veteran’s records from the Social Security Administration (SSA) dated May 2013, it was determined that he had the residual functional capacity to perform sedentary work, except that he was limited to work free of fast pace produced requirements and contact with the general public. In his SSA records, the Veteran reported that he had been disabled since May 2011 due to stomach problems, chronic abdominal pain, and major depression. He stated that he had worked as a custodian and a housekeeper in the past. He reported that he stopped working in May 2011 due to his disabilities. His last employment was reported as a housekeeper for the VA, but his job ended after a disagreement with his supervisor about the way he cleaned. Prior, he worked as a custodian for the Bridgeport School System from 1993 to May 2011. He reported problems with anger management on that job; his psychiatric doctor advised him to do something that did not require him to deal with the general public and children. In the report, the Veteran stated that he remained disabled due to his physical and mental impairments. In the Veteran’s SSA records, the adjudicator noted that the Veteran’s subjective allegations in disability reports and function reports were consistent with longitudinal medical records documenting ongoing signs and symptoms, despite compliance with medication and recommended treatment. The judge also noted that the record did not contain any inconsistencies that brought the Veteran’s credibility into question. The judge noted that the Veteran reported constant abdominal pain, nausea on and off throughout the day, vomiting twice per week, and constipation lasting up to four days. The judge opined that these symptoms would likely affect the Veteran’s ability to stay on task at work. An August 2011 VA examiner noted that the Veteran had difficulty with lifting and carrying which caused abdominal pain. An April 2013 VA examiner noted that the Veteran’s condition impacted his ability to work and noted the Veteran’s report that his abdominal pain made it difficult to do the lifting required in his job as a custodian. A December 2014 VA examiner noted the Veteran’s reports that he was not working due to daily symptoms and pain with physical exertion. The December 2014 VA examiner opined that the Veteran’s IBS impacted his ability to work in that he was unable to repetitively bend, lift, stoop, or carry loads due to ongoing abdominal pain. August 2015, February 2016, and May 2019 VA examiners noted the Veteran would need a job with flexibility to visit the bathroom as needed. The Veteran’s VA gastroenterologist opined that the Veteran’s IBS significantly negatively impacted his ability to work as the Veteran struggled with abdominal pain and diarrhea. See March 2018 VA Treatment Record. The Veteran’s VA psychologist opined that it was difficult to imagine the Veteran being able to tolerate the demands of most any employment he would be qualified to do as his IBS appears debilitating. He indicated that the Veteran was depleted from this discomfort on a daily basis and that his condition would likely make a regular work schedule very difficult if not impossible to sustain. See June 2015 VA Treatment Record. As to the Veteran’s employment history, he has worked for a VA Medical Center, and the City of Bridgeport. See July 2017 VA Form 21-8940. The Veteran has also specified that he has some culinary arts training, completed between 2007 and 2008. See April 2019 VA Form 21-8940. The Veteran has reported that he stopped working because of his stomach problems, as well as due to his headaches and depression which did not allow him to work along with his stomach problems. Id. The Veteran further reported that in November 2018, he was hospitalized due to his gastrointestinal problems. Id. Since that time, he reported that his problem had gotten worse, causing him to go to the VA hospital every week for some kind of treatment. Id. At the outset, the Board finds that the Veteran’s symptoms satisfy the criteria for the assignment of a 30 percent rating for IBS. The Board notes that a 30 percent rating is the maximum schedular disability rating for IBS. Symptoms under that rating are described as “severe” and include diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. These are the symptoms the Veteran experiences, as competently and credibly described in the aforementioned lay statements, VA treatment records, and in VA examination reports. These symptoms are specifically contemplated by the currently assigned 30 percent rating under Diagnostic Code 7319. Therefore, a schedular disability rating of 30 percent is warranted. A higher schedular rating cannot be considered under the applicable rating criteria. As to whether the Veteran may be entitled to a higher rating by applying another Diagnostic Code, gastrointestinal disabilities are “diseases of the digestive system.” With such diseases, particularly within the abdomen, which, while differing in the site of pathology, produce a common disability picture characterized by varying degrees of abdominal distress or pain, anemia, and disturbances in nutrition. Consequently, certain coexisting diseases in this area, as indicated by the instructions under the title “Diseases of the Digestive System,” 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. 38 C.F.R. § 4.113. Thus, 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 which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114. Therefore, under the regulation, a determination must be made regarding the predominant disability picture. In this case, the Veteran’s gastrointestinal disability has been diagnosed as IBS. He did not have symptoms that are more accurately categorized under another Diagnostic Codes. His symptoms are all specifically contemplated by Diagnostic Code 7319. Therefore, the Board finds that a higher rating is not warranted under another Diagnostic Code. Under certain circumstances VA may grant a disability rating outside of the rating schedule. As to an extraschedular rating, the Board notes that the Veteran’s claim for extraschedular consideration was denied by the Director of Compensation Service (Director) in February 2017. See February 2017 Correspondence. The Director determined that none of the evidence since 2008 showed hospitalizations, ER visits, surgical procedures, or weight loss due to the Veteran’s IBS. The Director further found that none of the Veteran’s VA examinations or outpatient treatment records showed significant functional restrictions due to IBS. None of the evidence of record at the time showed that the Veteran experienced constant severe pain which interfered with daily activities or work. Ultimately, the Director determined that there was no unusual or exceptional disability pattern demonstrated that would render the application of the regular criteria as impractical. However, pursuant to Wages v. McDonald, 27 Vet. App. 233, 236 (2015), nothing in the language of 38 C.F.R. § 4.16(b) purports to limit the Board’s scope of review of the Director’s decision and that the Board shall be the final authority on all benefits decisions under 38 U.S.C. § 7104 (a). While Wages dealt with extraschedular TDIU, the Court extended a similar holding to extraschedular ratings under § 3.321(b). See Kuppamala v. McDonald, 27 Vet. App. 447 (2015). As such, the Board will make its own determination regarding whether the Veteran’s symptoms warrant extraschedular ratings. According to VA regulations, in exceptional cases where schedular ratings are found to be inadequate, consideration of “an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities.” 38 C.F.R. § 3.321 (b)(1) (2017); 82 Fed. Reg. 57,830, 57,833 (Dec. 8, 2017). An extra-schedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321 (b)(1); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). The Board has compared the level of severity and symptomatology of the Veteran’s IBS with the established criteria found in the rating schedule. The Board finds that the schedular criteria adequately contemplate all the symptoms attributable to IBS. As discussed, the Veteran has complained of abdominal pain, diarrhea, nausea, vomiting, and cramps. While the Board is sympathetic, these symptoms are specifically contemplated by the current 30 percent schedular rating under Diagnostic Code 7319. Further, while the Veteran has reported hospitalization throughout the appeal period due to his IBS, the record does not support that he is frequently hospitalized for periods of time. Additionally, while the Veteran has reported that his IBS interferes with his employment, several medical examiners have found that while he is impaired due to his disability, the Veteran could work in a position with flexibility to visit the bathroom as needed. See e.g., August 2015 VA Examination, February 2016 VA Examination; May 2019 VA Examination; SSA Records. The Board acknowledges the burden the Veteran’s difficulty places on his life and his reports of difficulty working, but nonetheless, finds that the preponderance of the evidence is against a finding that there is marked interference with employment. As the rating criteria specifically contemplate the Veteran’s symptoms and the preponderance of the evidence is against a finding of marked interference with employment or frequent periods of hospitalization due to the Veteran’s IBS, an extraschedular rating is not warranted. In summation, a disability rating in excess of 30 percent for the Veteran’s IBS, to include extraschedular consideration, is not warranted. The Board has considered the doctrine of reasonable doubt but determined that it is not applicable because the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 2. Entitlement to a TDIU due solely to IBS on an extraschedular basis At the outset, the Board notes that the pertinent evidence of record is detailed in the above section regarding the Veteran’s claim for an increased rating for his IBS. The Board will refer to this evidence in its analysis. Entitlement to a TDIU on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability but the schedular criteria of 38 C.F.R. § 4.16(a) are not met. 38C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). As such, in December 2019, the Board determined that the Veteran’s claim should be referred to the Director, Compensation Service (Director) for extraschedular TDIU consideration based solely on IBS pursuant to 38 C.F.R. §4.16(b). Here, the Veteran is in receipt of a 30 percent rating for his IBS and a 100 percent rating for his service-connected psychiatric disability from June 17, 2011. If the Veteran is awarded a TDIU based solely on his service-connected IBS, he would be entitled to special monthly compensation pursuant to 38 C.F.R. § 3.350(i). Accordingly, the Board must consider whether IBS alone renders the Veteran unemployable. In an October 2020 report, the Director determined that the cumulative medical evidence did not support an extraschedular TDIU entitlement based solely on effects of IBS. Since the Veteran’s claim of entitlement to a TDIU on an extraschedular basis was denied by the Director, the Board may address the merits of the Veteran’s claim for entitlement to a TDIU on an extraschedular basis. Wages, 27 Vet. App. at 239. The Board finds that the evidence of record does not show impairment so severe as to prevent the Veteran from securing and maintaining employment. The probative evidence of record does not demonstrate the Veteran is unemployable solely due to his service-connected IBS. While there have been medical professionals who have opined that the Veteran’s ability to work is impaired, the preponderance of the evidence is against a finding that the Veteran is unable to maintain or sustain employment solely due to his IBS. Rather, probative evidence on file indicates that while the Veteran may need flexibility in his employment due to his IBS, his disability does not render him unable to maintain or obtain employment. The Board notes that the Veteran’s employment history in custodian work in theory supports such flexibility. In such a position, the Veteran provides services in settings which would allow for him to use the restroom at his leisure and return to work. The Board has considered the Veteran’s assertions that he is unable to work as a result of his service-connected IBS and recognizes that it must analyze the competency, credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir.1996) (table); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). The Board finds that the Veteran is competent to report symptoms such as abdominal pain, diarrhea, nausea, vomiting, and cramps. Notwithstanding, the Board finds that the Veteran’s assertions of unemployability are outweighed by the most probative medical evidence of record, which indicates that his service-connected IBS does not prevent him from obtaining substantially gainful employment due to functional impairment. As indicated above, on several occasions, medical professionals have found that with a certain amount of flexibility to tend to his disability, the Veteran would be able to maintain employment. Of note, the Veteran’s SSA records indicate that the Veteran was determined to be able to perform sedentary work. In those records, an arbitrator determined that the Veteran’s abdominal difficulties would likely impact the Veteran’s ability to stay on task at work, but did not opine that he was unemployable. With consideration of the above, the Board finds that the Veteran is not unemployable due solely to service-connected IBS. Therefore, TDIU on an extraschedular basis due to service-connected IBS is not warranted. In sum, the Board finds that while the Veteran’s service-connected IBS has been found to impact on his daily functioning, that impact was considered in the schedular ratings currently assigned, and the most probative evidence indicates the Veteran’s service-connected disability does not render him unable to obtain and maintain gainful employment consistent with his education, training and work experience. In reaching the above 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 the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. 49, 55-56. K. MARENNA Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Vosburgh, 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.