Citation Nr: 21031092 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 16-10 749 DATE: May 20, 2021 ORDER Entitlement to a rating in excess of 60 percent for Crohn's disease is denied. FINDING OF FACT The Veteran's Crohn's disease manifest with frequent episodes of diarrhea, fecal urgency, and abdominal pain and occasional hematemesis and vomiting. CONCLUSION OF LAW The criteria for a rating in excess of 60 percent for Crohn's disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.114, Diagnostic Code 7399-7323. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 2001 to August 2005. This matter comes before the Board of Veterans' Appeals (Board) from an August 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2019, the Veteran testified before the undersigned Veterans Law Judge. In May 2019, the Board granted a 60 percent rating for the Crohn's disease. The Veteran appealed to the United States Court of Appeals for Veteran's Claims (the Court). In a July 2020 Joint Motion for Partial Remand (JMPR), the Court vacated the part of the Board's May 2019 decision denying a rating in excess of 60 percent and remanded the matter for action consistent with the JMPR. In February 2021, the Board remanded this matter for further development. There has been substantial compliance with the Board's prior remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to a rating in excess of 60 percent for Crohn's disease is denied. An increased rating claim for service-connected Crohn's disease was received March 18, 2014. The August 2014 rating action on appeal granted a temporary 100 percent evaluation from February 26, 2014, to April 30, 2014 (for a period of convalescence); and continued a 30 percent rating thereafter, pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7323. In May 2019, the Board granted a 60 percent rating for the Crohn's disease. A May 2020 rating decision implemented the Board's grant of a 60 percent rating for the entire appeal period (excluding the period from February 26, 2014, to April 30, 2014 when a total rating was in effect). As noted in the Introduction, the issue remaining on appeal is whether entitlement to a rating in excess of 60 percent is warranted. For the reasons that follow, the Board finds entitlement to a rating in excess of 60 percent is not warranted. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's Crohn's disease is rated pursuant to 38 C.F.R. §4.114, Diagnostic Codes 7399-7323. Under Diagnostic Code 7323 for ulcerative colitis, a 10 percent rating is warranted for moderate symptoms with infrequent exacerbations. 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. Finally, 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. 38 C.F.R. § 4.114. 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." 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence 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. In this case, a February 2014 private treatment record notes a post-operative diagnosis of severe end-stage ileocolonic Crohn's disease. The Veteran underwent a VA intestinal conditions examination in July 2014. During the examination, the Veteran reported occasional flares with diarrhea, hematemesis, and bloating since his partial ileocolonic resection surgery in February 2014. The Veteran reported diarrhea about ten times within twenty-four hours and vomiting with attacks. The examiner indicated the Veteran requires continuous medication for control of his intestinal condition. The examiner noted the Veteran experienced seven or more episodes of exacerbations and/or attacks of his Crohn's disease in the past 12 months but no weight loss; malnutrition, serious complications, or other general health effects; or tumors or neoplasms attributable to his Crohn's disease. The examiner concluded by noting the Veteran's Crohn's disease impacts his ability to work due to frequent acute attacks of abdominal pain, bloating, diarrhea, and vomiting. The examiner noted the Veteran missed six days of work in the past three months. An October 2014 private treatment record reflects severe chronic Crohn's disease requiring a bowel resection and aggressive medical management. It further reflects frequent exacerbations and missed days of work. Symptoms of, or similar to, marked malnutrition, anemia, or liver abscess are not noted. In November 2014, the Veteran submitted an intestinal conditions disability benefits questionnaire (DBQ) completed by his private physician, Dr. H., who noted ongoing aggressive medical management and use of continuous medication to control the Veteran's Crohn's disease. Dr. H noted diarrhea attributable to his Crohn's disease and episodes of exacerbations and/or attacks with no specific number indicated. Dr. H. indicated the Veteran did not have weight loss nor malnutrition, serious complications, or other general health effects attributable to his Crohn's disease. Finally, Dr. H. noted the Veteran's intestinal condition impacts his ability to work as he has missed days due to exacerbations. A May 2017 private treatment record reflects no rectal bleeding or pain; abdominal pain; or constitutional symptoms such as nausea, emesis, fever, chills, fatigue, or weight loss. A July 2017 private colonoscopy operative report notes quiescent Crohn's with patent anastomosis. At his February 2019 Board hearing, the Veteran testified that his Crohn's disease symptoms have prevented him from doing a lot of activities he use to do, including playing sports and attending his children's school activities, because his Crohn's disease flare-ups trigger him to curl up in a fetal position in bed and prevent him from moving. The Veteran also indicated his Crohn's disease requires him to miss four to five days of work a month and his Crohn's disease medication causes depression and erectile dysfunction. During the hearing, the Veteran's wife also indicated the Veteran's Crohn's disease prevents him from playing sports and doing activities with his children. A February 2019 private colonoscopy operative report notes no evidence of disease with well-formed anastomosis and normal ileum and colon. A March 2019 correspondence from Dr. J.H notes the Veteran's Crohn's disease is stable on biologic therapy and that a February 2019 colonoscopy shows his Crohn's disease is stable with minimal mucosal disease. In a statement received in April 2019, the Veteran's wife again noted his Crohn's disease causes him immense pain that requires him to miss numerous days of work and other events. She also reported that he has a permanent handicap placard because he cannot be too far from a bathroom and requires him to travel with a change of clothing due to uncontrollable bowels. An October 2019 and a September 2020 private treatment record reflect no rectal bleeding or pain; abdominal pain; or constitutional symptoms such as nausea, emesis, fever, chills, fatigue, or weight loss. In compliance with the Board's February 2021 remand, the Veteran underwent a VA examination in March 2021. During the examination, the Veteran reported more days that he has flare-ups of his bowels with pain that inhibits him from doing daily activities and always requires him to be near a bathroom. He reported bowel movements five to six times a day with 90 percent soft stools. He reported seeing a private colon rectal specialist every six months and every three months for blood work. The examiner indicated that continuous medication is required for control of the Veteran's intestinal condition. The examiner indicated the Veteran has occasional episodes of bowel disturbance with abdominal distress or exacerbations or attacks of the intestinal condition. The examiner indicated that the Veteran does not have weight loss, malnutrition, serious complications, or other general health effects attributable to his intestinal condition. Finally, the examiner opined that the Veteran's February 2014 surgery, which consisted of an ileocecal resection and repair of a small bowel fistula, has no supported clinical objective evidence for 'serious complication' of his Crohn's disease. A March 2021 private treatment record notes no rectal bleeding or pain; changes in bowel movements; or associated constitutional symptoms such as nausea, emesis, fever, chills, fatigue, or weight loss. Physical examination of the abdomen revealed no tenderness to palpation, normal abdomen, normal tone without rigidity or guarding, normal bowel sounds, and no masses. After a review of the evidentiary record, the Board finds entitlement to a rating in excess of 60 percent for service-connected Crohn's disease is not warranted. The evidence of record shows the Veteran's Crohn's disease manifests primarily with symptoms of diarrhea, fecal urgency, and abdominal pain. While the Veteran and his wife are competent to report occasional hematemesis, vomiting, and worsening of symptoms since February 2014, the competent, objective medical evidence does not reflect that his Crohn's disease has resulted in malnutrition or other such serious complications at any point during the appeal period. To the extent the Veteran asserts his February 2014 surgery constitutes a serious complication of his Crohn's disease, the probative weight of such lay assertions are outweighed by the competent medical evidence of record, including the March 2021 VA examination report, which affirmatively indicates the Veteran's February 2014 surgery does not constitute a serious complication of his Crohn's disease. It is significant that the VA examiner specifically acknowledged the Veteran's February 2014 surgery but still determined that the Veteran's Crohn's disease has not resulted in weight loss, malnutrition, or any other 'serious health complications.' The Board acknowledges that the Veteran's private treatment provider, Dr. H., indicates his Crohn's disease is severe and requires use of medication for treatment. However, in his November 2014 DBQ, Br H. specifically noted that the Veteran did not have weight loss malnutrition, serious complications, or other general health effects attributable to his Crohn's disease. In finding a rating in excess of 60 percent is not warranted, the Board is mindful that VA may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria. Jones v. Shinseki, 26 Vet. App. 56, 61 (2012). The rating criteria listed under Diagnostic Code 7323 fails to contemplate the effects of medication on a claimant's Crohn's disease, such that the Board has considered the Veteran's symptoms without considering any ameliorating effect that may be caused by use of medication in denying a rating in excess of 60 percent. To this point, the Board notes both the Veteran's private physician, Dr. H, and the VA examinations of record indicate his Crohn's disease does not manifest with constitutional symptoms such as nausea, emesis, fever, chills, fatigue, or weight loss or even that it would manifest with such symptoms in the absence of the ameliorative effects of medication. In conclusion, as there is no evidence in the record that the Veteran experienced marked malnutrition, anemia, general debility, or other serious complications such as liver abscess, entitlement to a rating in excess of 60 percent is not warranted. The Board has further considered whether referral for extraschedular consideration is warranted based on the Veteran's testimony that use of Humira for Crohn's disease causes depression and erectile dysfunction. First, the Board acknowledges that these 'symptoms' are not explicitly contemplated by the schedular criteria for Crohn's. However, these reported symptoms have not been etiologically related to his Crohn's disease or use of medications by competent medical evidence. Moreover, the evidence does not suggest that these symptoms, even if found to be related to the Veteran's Crohn's disease, cause marked interference with employment, frequent hospitalizations, or other related factors so as to render impractical the application of the regular schedular standards. The evidence does not indicate, nor has the Veteran suggested, that the symptoms of depression and erectile dysfunction result in any need for hospitalization. He also has not required frequent hospitalization for Crohn's gastrointestinal symptoms. The Veteran has not reported that symptoms of depression and erectile dysfunction interfere with his employment at all. The evidence of record indicates the Veteran's gastrointestinal symptoms from Crohn's disease only interfere with his work during periods of exacerbation. Of note, at the VA examination in 2014, he reported that he only missed six days in the last three months due to Crohn's symptoms. The Veteran testified to missing an average of four to five days a month due to his Crohn's disease. The Board does not find this reaches the level of marked interference. Accordingly, referral for extraschedular consideration is not warranted. There are no additional expressly or reasonably raised issues on the record related to this claim. (Continued on the next page) Entitlement to a rating in excess of 60 percent for Crohn's disease is not warranted. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.Aoughsten, 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.