Citation Nr: 21041374 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 12-02 781 DATE: July 9, 2021 ORDER Entitlement to a rating in excess of 30 percent for pancolitis (to include irritable bowel syndrome (IBS)) is denied. REMANDED Entitlement to an extraschedular total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to April 17, 2014, is remanded. FINDING OF FACT The 30 percent rating assigned is the maximum schedular rating provided for irritable colon syndrome; more than moderately severe ulcerative colitis with frequent exacerbations is not shown; severe disability with numerous attacks a year and malnutrition, with health only fair during remissions, is not shown at any time; symptoms or impairment not encompassed by schedular criteria are not shown. CONCLUSION OF LAW A rating in excess of 30 percent for pancolitis is not warranted. 38 U.S.C.§§1155, 5107; 38C.F.R.§§3.321, 4.1, 4.3, 4.7, 4.114, Diagnostic Codes (Codes) 7319, 7323. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from September 1995 to December 1996. These matters are before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision. In January 2013, a videoconference hearing was held before the undersigned; a transcript is in the record. In April 2014 and October 2017, the Board remanded the matters for additional development. An October 2018 Board decision denied the Veteran entitlement to a rating in excess of 30 percent for pancolitis (to include irritable bowel syndrome) and entitlement to a TDIU rating. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (CAVC), resulting in a June 2019 Joint Motion for Remand (JMR) by the parties. A July 2019 CAVC Order vacated the Board's October 2018 decision and remanded it to the Board for further development and re-adjudication consistent with terms of a June 2019 Joint Motion for Remand (JMR). In April 2020, the case was remanded for development. An interim ( January 2021 ) rating decision granted a TDIU rating effective April 17, 2014. Accordingly, that matter is characterized (as listed above) as entitlement to a TDIU rating prior to that date (essentially because an April 2014 Board remand notes that TDIU was raised as part and parcel of the claim of increased rating for irritable colon syndrome, therefore entitlement to a TDIU rating prior to 2014 is still on appeal and will be addressed further below). Harper v. Wilkie, 30 Vet. App. 356 (2018). 1. A rating in excess of 30 percent for pancolitis (to include IBS) is denied. The Veteran contends that a rating in excess of the 30 percent currently assigned for irritable colon syndrome under Code 7319 is warranted because he suffers from malnutrition, which under Code 7323 (for ulcerative colitis) warrants a 60 percent rating. The Board notes that ulcerative colitis is a disease separate and distinct from the Veteran's service-connected irritable colon syndrome. Nonetheless, if he does have malnutrition due to his service-connected disability, such symptom would have to be accounted for by the rating assigned. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Pertinent general policy considerations include: interpreting examination reports in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating accurately reflects the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. An increased rating may be assigned for up to one year prior to receipt of a formal claim for increase, when it is factually ascertainable that an increase in disability had occurred during that period. 38 C.F.R. §§ 3.157, 3.400(o)(2). Consequently, the period for consideration is from December 30, 2009 (one year prior to the December 30, 2010 date of claim) to the present. A December 2010 VA treatment notes that the Veteran reported that his stomach pain had worsened, such pain manifested 3-4 times a day and lasted 30 minutes to 1 hour per episode, and he experienced diarrhea daily for the last several months. On February 2011 VA examination, the Veteran reported a weight loss of 10 pounds as well as nausea and vomiting just about daily. He reported that he fluctuated between constipation and diarrhea, with about 1 to 2 loose stools per day and constipation at least once a week. He did not have any fistulas. He related that his abdominal pain caused him distress and that he experienced frequent cramps that occurred just about daily, lasted throughout the day, and were located mainly in the right lower quadrant. He reported suffering about 1 to 2 attacks of ulcerative colitis per year. He reported that he was recently released from work, unrelated to his condition, but that he could not stand for long periods even he if wanted to return to work, because of the cramping and abdominal pain. On physical examination, it was noted that the Veteran did not look malnourished and there were no signs of anemia. There was no fistula, ostomy, or abdominal mass. There were no signs of weight gain or loss. It was noted that the Veteran was seen for a bloody bowel movement in October 2014, when a CT of his abdomen did not show any colonic wall thickening, and the CT of the abdomen was considered to be unremarkable, with no evidence of appendicitis or diverticulitis. The examiner found no mention from gastroenterology of the Veteran having ulcerative colitis, and no colonoscopy showed that he had any kind of inflammation that would lead to a diagnosis of ulcerative colitis. The examiner could not say for sure that the Veteran had a pancolitis, opining that it sounded more like IBS with the constant bloating he complained of and the daily loose stools followed by constipation. Based on this evidence, a March 2011 rating decision continued a 30 percent rating for pan colitis. A March 2011 VA treatment record notes that the Veteran reported severe abdominal pain when he stood for an extended period or exercised, nausea and dizziness. He also reported periodic bloody stools. A November 2011 VA treatment record notes that the Veteran reported a burning sensation in his stomach for 4 days, that he vomited twice the day before, and that he was currently experiencing nausea. A March 2012 VA treatment record notes that the Veteran reported that he was weak and dizzy, and had experienced nausea, vomiting and diarrhea with rectal bleeding since earlier that morning. A September 2012 VA treatment record notes that the Veteran reported stomach and abdominal pain, but no nausea, vomiting or diarrhea. At the January 2013 Board hearing, the Veteran testified that he had very low energy and frequently felt tired and weak. His representative argued that, as malnutrition is the body's inability to absorb nutrients, laboratory findings were necessary to determine whether the Veteran was malnourished. A May 2013 VA treatment record notes that the Veteran denied having nausea, vomiting, frequent indigestion, reflux symptoms, abdominal pain, diarrhea, constipation, or melena. An October 2013 VA treatment record notes that the Veteran had a recent EGD/colonoscopy with biopsies that were unremarkable. He reported cramping pain in his upper and lower abdomen after meals along with bloating and periodic constipation, but no nausea, vomiting, fever, chills, or loss of weight. A May 2014 VA treatment record notes that the Veteran reported occasional cramps and loose bowel movements. A September 2014 VA treatment record notes that the Veteran reported IBS with diarrhea and cramping, lower abdominal pain, darker blood leakage with and without a bowel movement, constipation, diarrhea, and vomiting. An August 2015 VA treatment record notes that the Veteran reported rectal bleeding, tenesmus, and 7-8 stools a day mixed with blood. He denied any additional intestinal manifestation of IBS. Ulcerative colitis and rectal bleeding were diagnosed. A November 2015 VA treatment record notes that the Veteran reported bleeding with bowel movements, fatigue, and mild abdominal cramping. The provider indicated that recent colonoscopy results were reviewed, and moderate internal and external hemorrhoids were noted. On February 2016 VA examination, it was noted that the Veteran was seen in October 2014 for possible inflammatory bowel syndrome because a 2011 biopsy showed chronic inflammation. He was started on Mesalamine and Protonix and his symptoms initially improved. He reported that during the past year, he developed more abdominal pain and rectal bleeding, so he had two colonoscopies and an EGD which were unremarkable except for internal and external hemorrhoids. He had remained on Mesalamine, but had not followed up with the GI department since. The Veteran reported having a lot of diarrhea, nausea, bleeding, and abdominal pain, and that he had tried Immodium with no relief. He reported waking up at night with diarrhea, which caused daytime fatigue. He reported daily diarrhea, with 7 to 8 bowel movements daily, all loose, that he felt bloated with no improvement after bowel movements, and that he experienced nausea on a daily basis, for which he took Promethazine. He reported vomiting multiple times a day with possible blood on occasion, more or less constant abdominal distress, and episodes of exacerbations and/or attacks of his intestinal disorder, with flares causing significant abdominal pain, diarrhea, nausea/vomiting and rectal bleeding. The examiner noted that he did not have weight loss due to an intestinal disorder and did not have malnutrition, serious complications, or other general health effects attributable to an intestinal disorder. Laboratory testing in September 2015 showed hemoglobin of 15.7, hematocrit of 47.2, white blood cell count of 7.1, and platelets at 242. The examiner noted that a 2011 colonoscopy with multiple biopsies showed chronic inflammation, a November 2015 colonoscopy showed moderate internal and external hemorrhoids, but otherwise a normal colon, and a November 2015 EGD showed mild antritis with normal biopsy results but was otherwise normal. IBS and ulcerative colitis were diagnosed. Based on the treatment and previous biopsy results, the examiner opined that it appeared that the Veteran had an inflammatory bowel disease, and that it would be beneficial to see what the GI department said when they saw him in the coming months in terms of a formal diagnosis. The examiner opined that it may be worth asking for an opinion from a GI specialist as there were some conflicting opinions, and it was noted that, in terms of his nutrition, the Veteran's weight was 170 pounds and review of the records showed he weighed 164 pounds in 2001. He had gained weight over the years, so the examiner did not think he was malnourished. The examiner noted that the albumin level was normal and opined that the pre-albumin level could be checked, but he did not think that was necessary at the time. A February 2017 VA treatment record notes that the Veteran reported ongoing pain since a January 2017 hemorrhoidectomy, multiple bowel movements daily that were liquid, and that he spent a lot of time in the bathroom due to his symptoms. He related that he experienced so much recent pain that he has difficulty walking to the bathroom and could not sleep for 4 nights. He had been soiling himself and started wearing adult diapers because he could not make it to a bathroom in time. On April 2017 VA rectum and anus examination, the Veteran reported that he had hemorrhoid pain and bleeding that had worsened over the past 2 years. The examiner noted a January 2017 hemorrhoidectomy and that the Veteran had been seen since for tenesmus and anal swelling and discomfort. The Veteran reported that he experienced up to 10 bowel movements a day which caused irritation of his hemorrhoids. A February 2017 sigmoidoscopy showed no pathology or active ulcerative colitis. Current treatment included lidocaine cream, stool softener, Anusol suppositories and Docusate. Signs and symptoms related to the disorder included hemorrhoids that were large or thrombotic, irreducible, had excessive redundant tissue, frequently recurred, had fissures, and persistently bled. The examiner noted that the hemorrhoids had some functional impact because the Veteran reported that they affected his diet, he was scared to eat, and he could only sit for 20-30 minutes and stand for 15-20 minutes. A May 2017 rating decision granted service connection for hemorrhoids, rated 20 percent, effective January 25, 2017. In a November 2017 medical opinion, the consulting provider opined that, based on review of medical literature, albumin levels are an indicator of malnutrition, in combination with physical examination findings, as well as weight and weight trends over a certain time frame. The reviewing provider opined that, given the normal albumin level noted [on February 2016 examination], such evidence did not support a finding of malnutrition per se; it was also his opinion that adequate testing was performed. Given this, and upon review of the Veteran's recorded weights, objective evidence did not support a finding of malnutrition. A November 2017 VA treatment record notes that the Veteran reported stool seepage since a January 2017 hemorrhoidectomy. An October 2018 VA treatment record notes that the Veteran reported recent nausea with abdominal cramping, and that he experienced approximately 10 non-bloody bowel movements a day which were sometimes loose. In the June 2019 CAVC JMR, the parties agreed that remand was required because the Board erred by not considering whether a separate rating was warranted under the 38 C.F.R. § 4.114, Code 7332 (impairment of sphincter control) due to fecal incontinence. It was noted that the evidence indicated that the Veteran had involuntary bowel movements and wore adult diapers. A September 2019 VA treatment record notes that the Veteran reported gastrointestinal issues, to include sphincter issues, from a surgery 2 years prior, and that he periodically had to wear adult diapers. On April 2020 VA intestinal conditions examination, IBS and ulcerative colitis were diagnosed. The Veteran reported constant nausea, pain, diarrhea, and vomiting, and that he experienced 10 bowel movements per day which were mostly liquid, but formed at times (9 loose and 1 solid normally). He related that he took Prilosec, Psyllium, Mesalamine, Hydrocortisone suppositories, and Immodium daily. He reported having abdominal distension approximately 3 days a week, and once-a-month episodes of exacerbation or attacks of the intestinal disorder consisting of abdominal cramping, fatigue, and nausea. The examiner indicated that the Veteran had not experienced weight loss attributable to an intestinal disorder. No malnutrition, serious complications, or other general health effects attributable to an intestinal disorder were shown. March 2018 lab testing showed hemoglobin of 15.20, a white blood count of 5.80, hematocrit of 44.5 and platelets of 250. The examiner opined that the Veteran's intestinal disorder did have some impact on functional impairment due to his frequent bowel movements. In an October 2020 addendum, the provider was to specifically indicate whether the leakage reported by the Veteran was a manifestation of the pancolitis (or of another, nonservice-connected disability entity, such as hemorrhoids). The provider indicated that there was no record of constant leakage noted in records and that the examination indicated that the reported leakage was due to hemorrhoids. She cited to a January 2017 VA treatment record that noted pasty tan stool leakage with no active bleeding, and that on April 2020 examination the Veteran reported multiple stools a day with abdominal pain, but there was no record of constant leakage. On December 2020 rectum and anus examination, chronic anal fissure and hemorrhoids were diagnosed. The Veteran reported pain and discomfort with leakage that required him to use pads and anal bleeding about once or twice a week. He reported 9-10 daily bowel movements, that he was on a high fiber diet, and that he used Lidocaine creme and Tucks pads. On examination, it was noted that he had internal hemorrhoids that were large or thrombotic, irreducible with excessive redundant tissue, evidencing frequent recurrences, with fissures, hemorrhoidectomy, bleeding, and leakage that requires wearing a pad, and a small anal fissure. The examiner noted that March 2017 lab testing showed hemoglobin of 14.8, a white blood cell count of 6.8, hematocrit of 45.3, and platelets of 266. The examiner opined that the Veteran's hemorrhoids impacted his ability to work because he may have difficulty with prolonged sitting. She also opined that he could work at a job where he was allowed multiple bathroom breaks and could stand when needed to relieve pressure to his bottom. In a January 2021 addendum, the provider opined that the Veteran had occasional fecal leakage of mild severity, and that he could work at a job where he was allowed multiple bathroom breaks and could stand when needed to relieve pressure to his bottom. A January 2021 Decision Review Officer (DRO) decision granted service connection for fecal leakage, rated 30 percent, effective January 30, 2017, and the DRO indicated that service connection for fecal leakage was related to the Veteran's service-connected hemorrhoids disability. The Veteran's service-connected pancolitis is rated under Code 7319 for irritable colon syndrome. Under Code 7319, a (maximum) 30 percent rating is warranted for severe irritable colon syndrome with diarrhea or alternating diarrhea and constipation, with more or less constant abdominal distress. 38 C.F.R.§4.114, Code 7319. Code 7319 specifically allows only a maximum 30 percent rating unless there are exceptional or unusual circumstances so as to warrant referring the case for extra-schedular consideration. 38 C.F.R.§ 3.321. Ulcerative colitis is rated under Code 7323. Under that Code, a 30 percent rating is warranted for moderately severe disability with frequent exacerbations. A 60 percent rating is warranted for severe disability with numerous attacks a year and malnutrition, the health only fair during remissions. A 100 percent rating is warranted for pronounced disability, resulting marked malnutrition, anemia, and general debility, or with serious complication as liver abscess. The evidence outlined above shows that symptoms of the Veteran's intestinal disability most closely approximate the criteria for a 30 percent rating under Code 7319. There is no objective evidence that due to this disability he has had malnutrition with health only fair during remissions of numerous attacks per year. While he has reported numerous times that he has had difficulty with pain and has experienced up to 9-10 bowel movements daily, the November 2017 reviewing provider, in response to the Board's specific remand instructions, opined that adequate testing was performed, and that laboratory studies that would reflect malnutrition and the Veteran's maintenance of weight do not support a finding of malnutrition. No examiner or treatment provider has opined that the Veteran experiences malnutrition due to his service-connected gastrointestinal disability, and subsequent lab testing does not support a finding of malnutrition. The preponderance of the evidence (including the Veteran's self-reports of symptoms and impairment) is against a finding of severe ulcerative colitis; a 60 percent rating under Code 7323 is not warranted. As noted above, the June 2019 CAVC JMR directed the Board to determine if a separate rating was warranted for fecal leakage. Fecal leakage was addressed on the above examination (with addendums) and a January 2021 DRO decision granted a separate 30 percent rating for fecal leakage. While the assignment of the maximum schedular rating for pancolitis raises a question of whether referral of the claim for increase to the Director of Compensation for consideration of an extraschedular rating is warranted, the Board's review of the evidence of record in the matter found that referral is not necessary. There is no evidence showing or specific allegation of symptoms or functional impairment not encompassed by the schedular criteria (and any additional symptoms that could be separately rated, such as fecal leakage, which was found to be related to his service-connected and separately-rated hemorrhoids, were adequately addressed). Therefore. referral for extraschedular consideration is not warranted. The preponderance of the evidence is against this claim. The appeal in the matter must be denied. REASONS FOR REMAND 2. Entitlement to an extraschedular TDIU rating prior to April 17, 2014. TDIU may be assigned on an extraschedular basis to veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). 38 C.F.R. § 4.16(b) ("It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.") The Veteran's only service-connected disability prior to April 17, 2014 was pan colitis (rated 30 percent). The disability rating was 30 percent from February 7, 2007. Therefore, he did not meet the schedular rating requirements for TDIU prior to April 17, 2014. The Veteran submitted a January 2020 vocational assessment in which, based on a review of the evidence, a private vocational expert opined that it is at least as likely as not that he was precluded from securing and following a substantially gainful occupation since he last worked full-time as an auto detailer in April 2012, and that he could not even successfully engage in sedentary employment considering his work history, and the limitations due to his service-connected (pan colitis) disability. The Board finds that the vocational expert's opinion that the Veteran's service connected disability impacted his ability to perform any type of occupational task since April 2012, considered alongside the Veteran's lay statements regarding his various physical limitations during that period, satisfies the 38 C.F.R. § 4.16(b) criteria for submission of the claim to the Director of the Compensation and Pension Service for extraschedular consideration. Accordingly, the Board finds that a remand for such referral is required. Prior to the referral, there should be development to ensure that the record is complete regarding the extent and nature of all of his employment prior to April 17, 2014. The matter is REMANDED for the following: 1. Arrange for any further development necessary (in particular that the nature and extent of all of his employment prior to April 17, 2014 is fully documented in the record), prepare an appropriate summary (noting in particular the findings by the January 2020 vocational expert and the Veteran's lay statements), and refer to the Director of Compensation for consideration, the matter of entitlement to an extraschedular TDIU rating under 38 C.F.R. § 4.16(b) prior to April 17, 2014. 2. Re-adjudicate the claim for TDIU prior to April 17, 2014 (implementing the Compensation Director's determination). GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Bayles, 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.