Citation Nr: 21030313 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 10-40 408 DATE: May 18, 2021 ORDER Prior to September 26, 2015, an initial 60 percent rating for ulcerative colitis is granted, subject to controlling regulations governing the payment of monetary awards. FINDING OF FACT Prior to September 26, 2015, the Veteran's ulcerative colitis results in severe symptoms with numerous attacks per year and malnutrition, the health only fair during remissions; pronounced symptoms resulting in marked malnutrition, anemia, and general debility, or with serious complication as liver abscess, are not shown. CONCLUSION OF LAW The criteria for an initial 60 percent rating, but not higher, for ulcerative colitis, prior to September 26, 2015, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.114, Diagnostic Code (DC) 7323. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 2005 through September 2008. The case is on appeal from a February 2009 rating decision. In a December 2017 memorandum decision, the United States Court of Appeals for Veterans Claims (CAVC) vacated the Board's August 2016 decision with respect to the denial of an initial rating higher than 30 percent for the appeal period prior to September 26, 2015. CAVC found the Board's decision contained inadequate rationale as to whether the VA examinations of record were in substantial compliance with the Board's prior remand directives regarding assessing functional limitations due to flare-ups. In July 2018 and July 2020, the Board remanded the matter for additional development. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). A rating higher than 30 percent for ulcerative colitis prior to September 26, 2015. Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3 Under DC 7323 pertaining to ulcerative colitis, 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. 38 C.F.R. § 4.114, DC 7323. 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 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. 38 C.F.R. § 4.114. Discussion The Veteran seeks a rating higher than 30 percent for ulcerative colitis prior to September 26, 2015. He maintains that his symptoms were more severe than reflected in the 30 percent rating assigned under DC 7323. Pursuant to the Board's July 2020 remand, a VA opinion was obtained in February 2021. The opinion states that the Veterans ulcerative colitis progressively worsened since its onset in 2006 and until 2015, as documented by symptomatology, response to treatment, and histology. Although initially controlled by mesalamine, subsequent flare-ups, even while on the medication, were noted to require further treatment, including antibiotics and eventually, continued Prednisone. Multiple flare ups were reported, including an extremely long one in August 2010 due to a change in medication; a December 2012 flare lasting until February 2013; and, a March 2014 flare up unresponsive to antibiotics requiring Prednisone. Additional impairment was reported to be cellular atypia that resulted in a more aggressive inflammatory response of the Veteran's intestine, with decreased response to treatment, increased symptoms, and impairment of health. The opinion shows that the Veteran's ulcerative colitis has required significantly increasing dosage and/or additional medications to maintain remission of his worst symptoms over the course of the rating period on appeal at issue. 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). The Board notes that DC 7323 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. In consideration of the above together with the additional functional impairment noted during flare ups in the February 2021 VA opinion, see Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Board finds that the Veteran's disability picture more closely approximates the criteria for a 60 percent rating throughout the rating period on appeal prior to September 26, 2015. Although the Board is granting a higher 60 percent rating, 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 finds that the evidence does not support a finding that the Veteran's manifested symptomatology met the criteria for a 100 percent rating prior to September 26, 2015. In that respect, the January 2009 VA examination report reflects mild ulcerative colitis, noting no malnourishment or anemia. Further, March 2010 VA treatment records note flare ups only twice a year. Moreover, the December 2013 VA examination report specifically states that the Veteran's ulcerative colitis was not productive of malnutrition, serious complication, or other general health effects attributable to ulcerative colitis. See January 2014 C&P Exam. No weight loss was reported, and no impact on the Veteran's ability to work was noted. In addition, records in May 2015 reflect that liver function test was normal and pain only with the urge to move the bowel was noted. See May 2015 Medical Treatment Records Government Facility. Further, the November 2020 VA examination report notes that the Veteran's ulcerative colitis was not productive of malnutrition, serious complication, or other general health effects attributable to ulcerative colitis. Moreover, the Board finds that the February 2021 VA opinion addresses the reasonably ascertainable degree of severity of the Veteran's ulcerative colitis and underlying functional impairment, including during flare ups. The opinion 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 description of the severity of disability do not include any indication of pronounced symptoms resulting in marked malnutrition, anemia, and general debility, or with a complication as liver abcess, even in the absence of medication or on flare up. The Board's grant of an initial 60 percent rating for ulcerative colitis contemplates the Veteran's symptoms, including marked interference with the Veteran's daily activities noted in the April 2021 submission from the Veteran's representative. As reflected above, reasonable doubt was already resolved in the Veteran's favor in granting an initial 60 percent rating prior to September 26, 2015, and thus, an even higher rating is clearly not warranted. Because ulcerative colitis has its own code, DC 7823, no rating by analogy under other codes is permissible; thus, a higher rating under another code provision is not for consideration. See Copeland v. McDonald, 27 Vet. App. 333, 337 (2015) (where there is a diagnostic code that addresses the particular service-connected disability, to evaluate that disability under another code would constitute impermissible rating by analogy). In sum, the evidence supports an initial 60 percent rating for ulcerative colitis prior to September 26, 2015. The preponderance of the evidence is against an initial rating higher than 60 percent for ulcerative colitis prior to September 26, 2015, and thus, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore, throughout the rating period on appeal prior to September 26, 2015, an initial 60 percent rating is warranted. S. Merrick Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Taylor 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.