Citation Nr: 21013568 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 14-18 878 DATE: March 9, 2021 ORDER Entitlement to a rating in excess of 60 percent for ulcerative colitis is denied. FINDING OF FACT The Veteran’s ulcerative colitis, in the absence of the ameliorating effects of medication, is of a degree of severity shown by the most probative evidence to approximate severe symptoms with numerous attacks per year and malnutrition, the health only fair during remissions; the pathology is not shown to be of a degree of severity approximating pronounced symptoms, resulting in marked malnutrition, anemia, and general debility, or with serious complication as liver abscess, even in the absence of the ameliorating effects of medication. CONCLUSION OF LAW The criteria for a rating in excess of 60 percent for ulcerative colitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7323. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from June 1998 to November 2005. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2011 rating decision by the Columbia, South Carolina, Department of Veterans Affairs (VA) Regional Office (RO). A February 2017 Travel Board hearing was held before the undersigned; a transcript is of record. During the Travel Board hearing, the Veteran’s representative appeared and explained that the Veteran had become unexpectedly unavailable due to a vehicle breakdown a significant distance from the hearing site. The Veteran’s representative confirmed that the Veteran did not desire to reschedule the hearing, and instead desired for his representative to read his testimony into the record, submit the Veteran’s written statement into evidence, and have the Board proceed with appellate review. In February 2018, the Board remanded this claim on appeal to the Agency of Original Jurisdiction (AOJ) for additional development of the evidentiary record. In March 2020, the Board again remanded this claim to the AOJ for additional development of the evidentiary record. The case has now returned to the Board for further appellate review. Increased Ratings Disability ratings are determined by comparing a Veteran’s symptomatology during the pertinent period on appeal with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings shall be applied under a particular diagnostic code, the higher rating will be assigned if the disability picture more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. An exception to this rule applies when the rating criteria are successive. In such a case, all the requirements of the lower levels must be met before a higher level is awarded, and 38 C.F.R. §§ 4.7 and 4.21 do not apply. Johnson v. Wilkie, 30 Vet. App. 245 (2018). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. With a claim for an increased initial rating, separate staged ratings may be assigned based on facts found. Fenderson v. West, 12 Vet. App. 119 (1999). In a claim for increase in a previously established rating, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the evidence contains factual findings that demonstrate distinct time periods when the service connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, staged ratings are to be considered. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Lay evidence may be competent to address any matter not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises or statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). The Board has reviewed all of the evidence in the Veteran’s claims file, with an emphasis on the evidence pertinent to the issue on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all contents of the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record but does not have to discuss each piece of evidence. Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. In McGrath v. Gober, 14 Vet. App. 28 (2000), the Court held that when evidence is created is irrelevant compared to when the Veteran was actually experiencing the symptoms. Thus, the Board will consider whether the evidence of record suggests that the severity of pertinent symptoms increased sometime prior to the date of the examination reports noting pertinent findings. The Board has also considered the history of the Veteran’s disabilities prior to the rating period on appeal to see if the history supports a higher rating during the rating period on appeal. Additional references to the Veteran’s service-connected disability are presented in evidence of record beyond that discussed below, including in VA medical reports associated with the Veteran’s treatment. The additional evidence of record does not present findings that significantly expand upon, revise, or contradict the findings in the most detailed evidence discussed by the Board in this decision. 1. Entitlement to a rating in excess of 60 percent for ulcerative colitis is denied. The Veteran contends that he is entitled to a higher disability rating for his service-connected ulcerative colitis. This claim arises on appeal from the initial rating determination accompanying the original grant of service connection for ulcerative colitis. Accordingly, the rating period for consideration in this matter begins with the January 6, 2011, effective date of the award of service connection for ulcerative colitis. The Veteran’s ulcerative colitis is rated under the provisions of 38 C.F.R. § 4.114, Diagnostic Code 7323, for ulcerative colitis. Pursuant to Diagnostic Code 7323, a 10 percent rating is assigned for moderate symptoms with infrequent exacerbations. A 30 percent rating is assigned 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 complication as liver abscess. Words such as “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. 38 C.F.R. § 4.6. Pursuant to 38 C.F.R. § 4.113, certain diseases of the digestive system, particularly within the abdomen, 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 and 4.113. Ratings under Diagnostic Codes 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. 38 C.F.R. § 4.114. When considering a claim for an increased disability rating, the Board must not consider the ameliorative effects of medication unless those effects are explicitly contemplated by the relevant rating criteria. See Jones v. Shinseki, 26 Vet. App. 56, 61 (2012). In this case, the Veteran’s ulcerative colitis is rated pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7323, which does not mention the effects of medication. Thus, the ameliorative effects of the Veteran’s medications are not for consideration in rating his ulcerative colitis. The Board finds that particular attention to the ameliorative effects of medication is necessary in this case. In this case, the Veteran underwent a VA rating examination for ulcerative colitis in September 2019 as a result of the directives of the Board’s February 2018 remand. Significantly, the September 2019 VA examination report indicates that “continuous medication [is] required for control of the veteran’s intestinal condition.” Specifically, the VA examiner noted that the Veteran was taking “8 pills daily of Mesalamine,” in addition to other treatment involving “Enema,” “Folic acid,” and “Multivitamin.” Other evidence, including a July 2019 VA treatment record, shows that the dosage of mesalamine totaled “3000mg” daily. A 2019 VA active outpatient medication list confirms that the Veteran’s prescription was for daily use of 8 capsules that were each a 375 mg dose, totaling 3,000 mg of mesalamine each day. Further review of the Veteran’s VA medical records reveals that the Veteran’s medically prescribed use of the anti-inflammatory mesalamine to control his ulcerative colitis symptoms has featured significantly increasing prescribed dosage over the duration of the rating period in this appeal. At the beginning of February 2015, the Veteran’s mesalamine prescription was for daily use of 6 capsules of 375 mg each, for a total of 2,300 mg each day. That prescription was increased to 3,000 mg per day on February 18, 2015, following a gastroenterologist’s review of the Veteran’s “inflammation labs” and “symptoms.” Looking further back, a November 25, 2014, VA gastroenterology treatment report shows that the Veteran was then prescribed “MESALAMINE 375MG … TAKE FOUR CAPSULES BY MOUTH EVERY MORNING.” This reflects a dosage of only 1,500 mg per day at that time, or half of his later dosage of 3,000 mg daily. The Board notes that the Veteran’s history, including as summarized in the November 2014 VA gastroenterology treatment report, makes clear that the Veteran’s mesalamine prescriptions (sometimes prescribed under the trade name of Lialda or, alternatively, sometimes as Apriso) is a feature of medical treatment efforts for maintenance of remission of his ulcerative colitis. The VA records indicate that the “[m]ax dose … for maintenance of remission is 3 grams [3,000 mg] po qam [take orally every morning]....” It is notable that the Veteran’s dosage of mesalamine is shown to have increased over time to reach the maximum permitted dosage for remission maintenance. The prescribed maintenance dosage has -doubled- since November 2014. The Board observes that it has more than doubled since earlier portions of the rating period on appeal, including with attention to the fact that he was prescribed 1,200 mg of mesalamine daily at the time of the June 2012 VA examination report. Indeed, at the time of a May 2011 VA treatment report, the Veteran was not taking “any medication for his ulcerative colitis,” whereas treatment progressed to the point where he takes the maximum dose for remission maintenance. This information is important because it shows that the Veteran’s ulcerative colitis has required significantly increasing dosage of mesalamine to maintain remission of his worst symptoms over the course of the rating period on appeal. When the Board addressed this matter in March 2020, the Board noted that the assigned disability rating on appeal (30 percent at that time) for the Veteran’s colitis was the same for May 2011, when he took no medication, as it was throughout the rating period, a status raising significant questions in light of the significant increase in prescribed medication reaching a maximum dosage of medication for remission-maintenance. The Board discussed that this medically documented requirement for such a significant increase in maintenance medication, reaching maximum levels, strongly suggests some increase in severity of the underlying pathology that may be more disabling in the absence of the ameliorating effects of the medication. The Board’s March 2020 remand directed that the Veteran be provided a new VA examination and medical opinion with an attempt to explain whether, in the absence of medication, the Veteran’s ulcerative colitis would approximate the criteria for higher ratings under Diagnostic Code 7323 at any time during the rating period on appeal. The resulting May 2020 VA examination report includes an associated medical opinion in which the examining expert states: “if the veteran stopped taking medications for his UC at any time since 2011, [] his health would at least as likely as not decrease and he would have increased symptoms attributing to at least moderate disability with persistent exacerbations resulting in fair health, worsening anemia and vitamin deficiencies.” On the basis of this medical opinion, the AOJ issued a rating decision in July 2020 that granted the Veteran’s appeal to the extent of awarding an increased 60 percent rating for ulcerative colitis effective from January 6, 2011, covering the entire rating period on appeal. The Board is now tasked with review of the remaining question of whether the Veteran is entitled to a further increased rating for his ulcerative colitis. The Board’s observations and concerns regarding the ameliorating effects of medication, as discussed in the March 2020 Board remand, essentially amount to a recognition in this case that an inventory of the Veteran’s actual symptom manifestations is insufficient to establish the appropriate disability rating to which he is entitled; only the May 2020 VA examination report presents significant medical evidence addressing the extent of the underlying disability obscured by the ameliorating effects of medication. Accordingly, the Board has reviewed the record to see not only whether the evidence of record shows manifested symptomatology meeting the criteria for a further increased rating, but also whether the evidence indicates that such symptomatology would exist in the absence of the ameliorating effects of medication. The next-higher rating available under the applicable schedular rating provisions is a 100 percent rating, which contemplates pronounced symptoms, resulting in marked malnutrition, anemia, and general debility, or with serious complication as liver abscess. The Board first finds that the evidence of record does not support finding that the Veteran’s manifested symptomatology has met the criteria for a 100 percent rating. Significantly, a June 2012 VA examination report shows that “No,” the disability was not productive of “malnutrition, serious complications or other general health effects attributable to the intestinal condition,” including general debility, liver abscess or comparable health impairment. The disability was indicated to be manifested by frequent episodes of bloody diarrhea. A December 2014 VA examination report shows that the disability was then manifested by diarrhea, pain, and bloating with occasional blood in stool once per week. The December 2014 VA examiner stated that “No,” the disability was not productive of “malnutrition, serious complications or other general health effects attributable to the intestinal condition.” This is essentially consistent with the June 2012 VA examiner’s findings. A September 2019 VA examination report shows the VA examiner’s remarks that the Veteran “does have frequent episodes of bowel distress with abdominal cramping/bloating - reported as daily diarrhea with bloody stool by the Veteran.” The September 2019 VA examiner made clear, however, that: [t]here is no evidence of malnutrition - he has a stable weight - in fact increasing over the last two years. It [ulcerative colitis] has not otherwise become pronounced, resulting in marked malnutrition, there is no evidence of anemia - hemoglobin normal on exam today, he is currently working as a truck driver and debility is not noted, no history of liver abscess. A May 2020 VA examination report also shows that the disability is manifested by “intermittent blood in stools,” “soft stools,” and “intermittent flares with diarrhea.” The May 2020 VA examiner stated that “No,” the disability was not productive of “malnutrition, serious complications or other general health effects attributable to the intestinal condition,” and the May 2020 VA examiner reported that there was no anemia associated with the pathology; these findings are consistent with the prior VA examiners’ findings. Based upon its review of the evidence of record, the Board finds that the Veteran’s shown symptom manifestations have not met the criteria for a rating in excess of 60 percent at any time in this case. The Board has also considered whether the Veteran’s ulcerative colitis, in the absence of the ameliorating effects of medication, would reveal an underlying pathology of the severity contemplated by the criteria for a rating in excess of 60 percent. However, the Board finds that the evidence weighs against such a finding. The May 2020 VA examiner’s medical opinion discussing how the ulcerative colitis may be medically expected to manifest in the absence of the ameliorative effects of medication indicates that “it is possible … he would have increased symptoms attributing to at least moderate disability with persistent exacerbations resulting in fair health, worsening anemia and vitamin deficiencies.” The Board finds that the VA examiner’s discussion addressing the ameliorative effects of medication contemplates the issue with a discussion of the reasonably ascertainable degree of severity of the underlying impairment; this evidence has served as the basis of the grant of the increased 60 percent rating in the July 2020 AOJ rating decision. The May 2020 VA examiner’s discussion in this regard presents no basis for finding that the severity of underlying disability is consistent with that contemplated by the criteria for a 100 percent rating. The “increased symptoms” discussed in the VA examiner’s description of the severity of disability in the absence of ameliorating effects of medication do not include any indication of pronounced symptoms resulting in marked malnutrition, anemia, and general debility. Neither does the VA examiner’s discussion indicate that serious complication as liver abscess would be expected in the absence of ameliorative effects of medication; the VA examiner states that “liver abscesses are very rare with UC,” and that “this examiner is unable to report if the vet would have a serious complication of a liver abscess during his course of untreated UC.” The Board finds that it is clear that the VA examiner’s discussion fully and appropriately engaged the query into the necessarily speculative territory of projecting the severity of symptoms and impairment the Veteran would have if he were to hypothetically discontinue use of his treating medications. The VA examiner specifically identified certain impairment details as “at least as likely as not.” The Board finds that the VA examiner has indicated an inability to include impairment meeting the criteria for a rating in excess of 60 percent in her projection of impairment that would result from the absence of ameliorative effects of medication. In the absence of evidence otherwise indicating that the criteria for a rating in excess of 60 percent have been met, the Board finds that the preponderance of the evidence is against finding any basis for an award of a rating in excess of 60 percent in this case. Increased Ratings Conclusion As discussed above, the Board finds that the preponderance of the evidence is against awarding any additional or further increased ratings this case. The Board has considered whether there is any other basis for granting increased and/or additional ratings, but the Board has found none. As the preponderance of the evidence is against assignment of any further increased and/or additional ratings in this case, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record in connection with the disability for consideration in this appeal. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Barone, Alexander 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.