Citation Nr: 21014491 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 16-27 205 DATE: March 12, 2021 ORDER Entitlement to an initial 30 percent rating for irritable bowel syndrome (IBS) is granted. FINDING OF FACT The Veteran’s IBS has more nearly approximated moderately severe symptoms with exacerbations as demonstrated by intermittent and unpredictable diarrhea, constipation, and abdominal distress. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, the criteria for an initial 30 percent rating, but no higher, for IBS have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.114, Diagnostic Code 7399-7323. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Air Force from August 1994 to December 1994, from March 1996 to February 2004, from November 2004 to April 2005, from October 2005 to September 2006, from October 2006 to August 2007, from October 2007 to September 2008, and from May 2009 to September 2012. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This appeal was most recently before the Board in October 2019, at which time the Board granted service connection for cold urticaria and a right knee disability, and granted the Veteran an initial 10 percent rating for irritable bowel syndrome (IBS). As the grant of service connection is considered a full grant of the benefit sought as to the issues of cold urticaria and a right knee disability, they are no longer on appeal before the Board. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (CAVC) as to the initial rating assigned for IBS. In a July 2020 Order, the CAVC granted a Joint Motion for Partial Remand (JMPR) which vacated the part of the Board’s October 2019 decision that denied entitlement to an initial rating in excess of 10 percent for IBS, and remanded for readjudication. In the JMPR, the parties agreed that the Board had erred by failing to define terms of severity and frequency as used in 38 C.F.R. § 4.114, Diagnostic Codes (DC) 7319 and 7323. Specifically, in finding that the Veteran’s IBS “more closely approximates moderate symptoms with infrequent exacerbations,” the Board did not explain how it defined “moderate” or “infrequent.” The parties also agreed that the Board erred by failing to address relevant evidence, including a handwritten note on the July 2019 private examination next to a checkbox, that reads “twice a month.” Remand was ordered for the Board to adequately address these errors and readjudicate the Veteran’s appeal. The Veteran and her husband testified before the undersigned Veterans Law Judge at a July 2019 videoconference hearing. A transcript of this hearing is of record. Duties to Notify and Assist With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. Neither the Veteran nor her representative have advanced any procedural arguments in relation to VA's duty to notify and assist; therefore, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Entitlement to an initial rating in excess of 10 percent, for irritable bowel syndrome The Veteran asserts that her IBS is worse than her current evaluation reflects. In particular, the Veteran describes experiencing symptoms of daily constipation and abdominal distress with accompanying extreme bloating and gas. She said that she had left flank pain or cramps at least once a week. Sometimes, she also said that she vomited. She indicated that she experienced IBS symptoms from eating certain foods and when she was under any stress. Overall, the Veteran said that she had incapacitating episodes at least once a month. See January 2015 Notice of Disagreement, June 2016 VA Form 9 and July 2019 Board hearing transcript. 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, military 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. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. Because the level of disability may have varied over the course of the claim, the rating may be “staged” higher or lower for segments of time during the period under review in accordance with such variations. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). In initial-rating cases, where the appeal stems from a granted claim of service connection with respect to the initial evaluation assigned, VA assesses the level of disability from the effective date of service connection. See Fenderson, 12 Vet. App. at 125; 38U.S.C. §5110; 38C.F.R. §3.400. VA is required to evaluate the Veteran’s disability under the most appropriate rating criteria that will provide the most benefit to the Veteran. The assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.” Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). The Veteran is currently assigned a 10 percent evaluation pursuant to 38 C.F.R. § 4.114, Diagnostic Codes 7399-7323 effective September 30, 2012, for a disability analogous to ulcerative colitis. When an unlisted condition is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 . According to the policy in the Rating Schedule, when a disability is not specifically listed, the Diagnostic Code will be "built up," meaning that the first 2 digits will be selected from that part of the schedule most closely identifying the part of the body involved, and the last 2 digits will be "99." 38 C.F.R. § 4.27 . For example, Diagnostic Code 7399 is used to identify unlisted digestive system disabilities. Under Diagnostic Code 7323 for ulcerative colitis, a 10 percent evaluation is assigned for moderate symptoms with infrequent exacerbations. A 30 percent evaluation is assigned for moderately severe symptoms with frequent exacerbations. A 60 percent evaluation is assigned for severe symptoms with numerous attacks a year and malnutrition, the health only fair during remission. A 100 percent evaluation is assigned for pronounced symptoms resulting in marked malnutrition, anemia, and general debility, or with serious complication as liver abscess. Irritable colon syndrome is rated under Diagnostic Code 7319. Under Diagnostic Code 7319, a 10 percent evaluation is assigned for moderate disability with frequent episodes of bowel disturbance with abdominal distress. A 30 percent evaluation is assigned for severe disability with diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. 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 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. The words mild, moderate, severe, frequent, and infrequent as used in Diagnostic Codes 7319, 7323 are not defined in the VA Schedule of Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. According to MERRIAM WEBSTER, “mild” means “moderate in action of effect.” See www.merriam-webster.com/dictionary/mild. "Moderate" means "tending toward the mean or average amount or dimension." See www.merriam-webster.com/dictionary/moderate. "Severe" means "of a great degree." See www.merriam-webster.com/dictionary/severe. “Frequent” means “happening at short intervals: often repeated or occurring.” See www.merriam-webster.com/dictionary/frequent. “Infrequent” means “seldom happening or occurring.” See www.merriam/webster.com/dictionary/infrequent. It should also be noted that use of such terminology by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Based on a careful review of the subjective and clinical evidence, the Board finds that resolving all reasonable doubt in favor of the Veteran, and throughout the appeal period, an initial 30 percent rating for the Veteran’s IBS is warranted. In other words, the Veteran’s IBS more closely approximates moderately severe symptoms with frequent exacerbations. In December 2012, the Veteran underwent an intestinal conditions VA examination. The Veteran reported that her condition began in 2010 and was diagnosed as IBS in 2011. The examiner diagnosed the Veteran with IBS, noted that the Veteran was not on continuous medication to control her IBS, and that she had not had any surgeries to treat it. The Veteran had frequent episodes of bowel disturbance with abdominal distress. The Veteran also had episodes of exacerbations and/or attacks resulting in pain in her lower left side and frequent constipation. In the 12 months prior, the Veteran had three such attacks. The examiner noted no weight loss, malnutrition, complications or other general health effects, and no tumors or neoplasms. The examiner noted that the Veteran’s IBS did not result in functional impact. Service treatment records from the period on appeal reflect a January 2013 IBS diagnosis. In May 2014, the Veteran underwent an additional intestinal conditions VA examination. On exam, the examiner diagnosed the Veteran with IBS. The Veteran reported that her IBS began in June 2010 and was diagnosed in October 2010. She also reported unexplained side pain over periods of time. Her then current symptoms were stress, and side pain caused by eating certain foods. She was taking prescription medication for her IBS, which the examiner noted was not continuous. The examiner noted no episodes of bowel disturbance with abdominal distress, and no episodes of exacerbations and/or attacks of the Veteran’s IBS. The examiner noted no weight loss, malnutrition, complications or other general health effects, and no tumors or neoplasms. The examiner noted that the Veteran’s IBS did not result in functional impact. In a January 2015 statement, the Veteran wrote that in addition to experiencing pain when eating certain foods, she experiences pain when under stress or in stressful situations. The most recent occurrence was November 30, 2014 at approximately 4:00 a.m. During this occurrence, trying to get out of bed was difficult and when she did her face felt flush, she observed herself in the mirror as being “pasty white.” The Veteran had “extreme” pain and rated her pain as 10 on a 1-10 scale. The Veteran wrote that this happens a few times a month – where she will be sleeping and is awoken by side pain. Her IBS causes her daily constipation, which she tries to correct with stool softeners and prune juice. When her nighttime pain is prevalent, she tries to get relief from prescription medication. An October 2015 VA treatment note reflects the Veteran’s IBS symptoms as “predominantly constipation,” but that she is “controlling it well with regularly drinking prune juice.” In a May 2016 statement, the Veteran wrote that she has frequent constipation and abdominal distress and that she must pay attention to her bowels daily. The Veteran experiences daily constipation accompanied with extreme bloating and gas. She has become accustomed to trying different methods in attempt to accommodate her IBS, but she is not always successful. The Veteran is never certain how a particular food is going to affect her IBS. The Veteran pointed to her internal and external hemorrhoids as being caused by her constipation, which can cause pain when sitting for long periods of time. At least once a week the Veteran’s abdomen becomes bloated to the point that it can even “be hard to button [her] pants.” Her IBS is very unpredictable and uncomfortable and sometimes she would rather not eat at all than risk affecting her IBS episodes. During her July 2019 hearing, the Veteran testified to IBS symptoms of daily constipation, left flank pain on left side on certain days, bloating, and experiencing cramps at least once a week. She testified that sometimes her prescription medications work and sometimes they do not. She has at least one incapacitating episode per month but there are months where she has had a couple of incapacitating episodes. She has not experienced any weight loss, night sweats or chills, but has vomited. In July 2019, clinical findings were provided by a private physician in an Intestinal Conditions Disability Benefits Questionnaire. The Veteran was diagnosed with IBS. The examiner noted the Veteran’s history of intermittent abdominal cramps, constipation, and occasional diarrhea. The Veteran was not on continuous medication for her IBS and had not had any surgeries. The examiner described the Veteran’s medical history as “has had intermittent abdominal cramps, constipation, and occasional diarrhea.” The examiner again noted that the Veteran had intermittent diarrhea and constipation. The examiner noted occasional episodes of bowel disturbance with abdominal distress (that used to be frequent) and twice a month episodes of exacerbations and/or attacks of the Veteran’s IBS in the form of abdominal cramping. The examiner noted no weight loss, malnutrition, complications or other general health effects, and no tumors or neoplasms. The Veteran previously underwent a colonoscopy which was normal. The Veteran’s IBS impacts her ability to work, specifically the examiner concluded that during periods of flare up she is unable to perform any work. Private treatment records from the period on appeal do not contain any relevant medical evidence, including treatment for IBS or the symptoms thereof. The Board finds that the Veteran’s IBS which includes symptoms of constipation on a daily basis, pain, including pain brought on by stress or stressful situations, extreme gas, unpredictable reactions to certain foods, abdominal bloating, cramps at least once a week, 1-2 incapacitating episodes per month, intermittent diarrhea, and twice a month exacerbations or attacks in the form of abdominal cramping, are accurately reflected by the current 10 percent evaluation. Though the Veteran experiences intermittent diarrhea as documented in the July 2019 exam, the evidence of record does not show that she has either severe diarrhea or alternating diarrhea and constipation, with more or less constant abdominal distress to warrant an increased 30 percent rating. Only the July 2019 examiner found that the Veteran experienced diarrhea, all other VA examinations and VA treatment records from the period on appeal are silent for complaints of diarrhea. Accordingly, a disability rating of 30 percent, but no higher, for IBS is warranted. The Board finds that the Veteran’s IBS does not warrant the next higher 60 percent evaluation under Diagnostic Code 7323. There is no evidence to support that the Veteran has severe symptoms with numerous attacks a year and malnutrition, the health only fair during remission. The Board has also considered the statements submitted by the Veteran in support of her claim, specifically that her IBS causes her daily constipation and abdominal distress with accompanying extreme bloating and gas, abdominal pain, cramps at least once a week, periodic vomiting, unpredictable and inconsistent reactions to foods, and IBS symptoms due to stress or stressful situations. The Board finds that the Veteran is a lay person and is competent to report observable symptoms she experiences through her senses. Layno v. Brown, 6 Vet. App. 465 (1994). However, she is not competent to identify a specific level of disability according to the appropriate diagnostic codes. Determining whether the Veteran meets some of the criteria for a higher rating requires medical diagnostic testing. Competent evidence concerning the nature and extent of the Veteran's IBS has been provided by the medical personnel who examined her and who made pertinent clinical findings in conjunction with the examination. The medical findings, as provided in the examination report, directly address the criteria under which her disability is rated. The Board finds that this evidence is the most persuasive and outweighs a finding of a rating in excess of 30 percent. Based on the foregoing, the Board finds that an initial 30 percent rating, but no higher, is warranted for IBS. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Gates 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.