Citation Nr: 23051101 Decision Date: 09/14/23 Archive Date: 09/14/23 DOCKET NO. 17-56 705 DATE: September 14, 2023 ORDER Entitlement to an initial rating of 100 percent for Crohn's disease status post intestinal resection and ileostomy (claimed with anemia) is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is dismissed. FINDINGS OF FACT 1. The evidence of record is at least in approximate balance as to whether the Veteran's Crohn's disease has presented with pronounced symptomatology, such as anemia and serious complications, throughout the appellate period. 2. For the entire period on appeal, the Veteran has been granted a 100 percent schedular rating for his Crohn's disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating of 100 percent for service-connected Crohn's disease status post intestinal resection and ileostomy (claimed with anemia) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.21, 4.114, Diagnostic Codes (DCs) 7399-7323. 2. Entitlement to a TDIU is moot. 38 U.S.C. § 7105(d); 38 C.F.R. § 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 2008 to August 2008. This matter is on appeal from a February 2016 rating decision. He testified before the undersigned Veterans Law Judge in February 2022. A copy of the transcript is of record. This case was previously before the Board in June 2022. The Board awarded a minimum of a 10 percent rating for the Veteran's service-connected Crohn's disease at that time. The Board also remanded a claim for whether a rating in excess of 10 percent is warranted for the appeals period and a claim for entitlement to TDIU. While on remand, the agency of original jurisdiction (AOJ) granted a temporary evaluation of 100 percent for the Veteran's Crohn's disease based on surgical or other treatment necessitating convalescence between June 25, 2014 and December 30, 2014. See June 2023 Rating Decision. The analysis below considers the appeals period before and after this temporary 100 percent rating. A June 2023 supplemental statement of the case was issued and the claims are again before the Board. 1. Entitlement to an initial rating in excess of 10 percent for Crohn's disease status post intestinal resection and ileostomy (claimed with anemia). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 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. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board should consider only those factors contained in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994). Where there is a question as to which of two ratings shall be applied, the higher rating 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. The Board will also consider entitlement to staged ratings to compensate for times since filing the claims when the disabilities may have been more severe than at other times during the course of the claims on appeal. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's Crohn's disease status post intestinal resection and ileostomy (claimed with anemia) is rated at 10 percent under DCs 7399-7323. Crohn's disease is rated by analogy under DC 7399-7323. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. As noted above, a June 2023 rating decision awarded the Veteran a temporary evaluation of 100 percent for his Crohn's disease based on surgical or other treatment necessitating convalescence between June 25, 2014 and December 30, 2014. See June 2023 Rating Decision. The Board will address whether a rating in excess of 10 percent is warranted prior to June 25, 2014 and since December 31, 2014. Under Diagnostic Code 7323, a 10 percent disability rating is warranted for moderate ulcerative colitis with infrequent exacerbations. A 30 percent disability rating is warranted for moderately severe symptoms characterized by frequent exacerbations. A 60 percent disability rating is warranted for severe ulcerative colitis characterized by numerous attacks per year and malnutrition, with the residual health assessed as fair during remissions. A 100 percent disability rating is warranted for pronounced symptoms characterized by marked malnutrition, anemia, and general debility, or with serious complication such as liver abscess. 38 U.S.C. § 4.114. Neither the Rating Schedule nor the regulations provide definitions for descriptive words, to include terms such as "moderate," "moderately severe," "severe," or "pronounced." Sellers v. Wilkie, 30 Vet. App. 157 (2018). Rather than applying a mechanical formula, the Board must instead evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Diagnostic Code 7329 evaluates the resection of the large intestine. A 10 percent rating is warranted for resection of the large intestine with slight symptoms. A 20 percent rating is warranted for resection of the large intestine with moderate symptoms. A 40 percent rating is warranted for resection of the large intestine with severe symptoms, objectively supported by examinations findings. A Note to Diagnostic Code 7329 provides that, where residual adhesions constitute the predominant disability, the disability is to be rated under Diagnostic Code 7301. 38 C.F.R. § 4.114. Ratings under DCs 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348, inclusive, will not be combined with each other. A single rating will be assigned under the DC that reflects the predominant disability picture, with elevation to the next higher rating where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114. The Veteran's post-service medical records have been associated with the claims file. A January 2009 private treatment record reflects that the Veteran appeared emaciated, wasted and with severe pallor. A colonoscopy in September 2009 revealed changes of severe inflammatory and stenotic Crohn's disease. An October 2009 private treatment record noted that the Veteran was very sick with severe Crohn's disease and associated sepsis. In a January 2010 letter, from his private treating physician, it was noted that the Veteran had severe abdominal pain and vomiting. It was noted that he had severe anemia and was currently being treated with Pentasa, Humira, Entocort and Imuran, and was making a slow recovery. In an April 2010 statement, the Veteran reported that he had to wear an ileostomy bag and is still anemic. In a January 2011 private treatment record it was noted that the Veteran had anemia. The Veteran underwent a May 2011 VA intestines examination. The examiner noted that the Veteran was diagnosed with Crohn's disease in August 2008. The Veteran reported that he underwent an intestinal resection and ileostomy in October 2009. He reported that he has daily nausea, weekly vomiting, and diarrhea 1 to 4 times a day. The Veteran stated that he has 1 to 3 attacks of diarrhea a year that last 7 or more days. He reported several episodes of intestinal pain during the day that get worse after eating food and are associated with nausea and loose bloody stools. An examination at that time revealed no signs of anemia, no abdominal tenderness, and no signs of significant weight loss or malnutrition. In an October 2011 medical opinion, it was noted that the Veteran's anemia is caused by his chronic gastrointestinal bleeding secondary to Crohn's disease. At a June 2015 private treatment visit the Veteran reported frequent stools every four hours or so. In a June 2016 statement, the Veteran reported that he had undergone two surgeries and was on Social Security Administration (SSA) disability due to his Crohn's. He stated that he thought DC 7329 (resection of large intestine), should apply because had three feet of his colon removed. He reported treating his condition with Humira injections once every two weeks. The Veteran also reported chronic consistent diarrhea and that he had undergone an iron infusion treatment at the beginning of that year. The Veteran underwent a January 2017 VA intestinal conditions examination. He was diagnosed with Crohn's disease. It was noted that he was on continuous medication for this condition including Humira every 2 weeks and IV iron infusions. The examiner noted that the Veteran has diarrhea about five times a day and sometimes it is bloody. It was noted that the Veteran did not have episodes of bowel disturbance with abdominal distress, or exacerbations or attacks of intestinal condition. The examiner also indicated that the Veteran did not have weight loss attributable to an intestinal condition. The examiner noted that his condition impacts his ability to work in that he has to go to the restroom often and when his hemoglobin is low, he is very tired. The Veteran reported that his condition is about the same as it was a year ago, that his last intestinal surgery was in 2014, and that his last iron infusion was in July 2016. A January 2017 VA treatment record noted that the Veteran was anemic. The Veteran testified at his February 2022 BVA hearing that he uses the restroom 6-8 times a day. See BVA Hearing Transcript (T.) at 3. He reported that he feels weak once every couple of months and self-treats his condition. See BVA T. at 3-4. The Veteran reported that he has flare-ups every other month and has issues relating to anemia. See BVA T. at 5-6. The Veteran attended an April 2023 VA Intestinal Surgery examination. He was diagnosed with Crohn's disease status post intestinal resection and ileostomy. The Veteran reported bowel movements 10 times a day with loose stool. He reported that 2-3 times a year he will have chills. He reported that in February 2023 he had received two ferritin infusions. The Veteran reported continuous medication for control of his intestinal conditions with iron transfusions as needed. It was noted that he had moderate symptoms attributable to the resection of his large intestine. No weight loss or inability to gain weight was attributable to his intestinal surgery. The examiner noted that the Veteran had interference with absorption and nutrition attributable to his resection of the small intestine. The examiner noted that the Veteran's severe Crohn's disease led to the need of a bowel resection and ileostomy. It was noted that his intestinal surgery residuals impact his ability to work because he has 10 bowel movements a day and has to use the restroom often. An April 2023 Hematologic and Lymphatic Conditions examination was additionally completed. He was diagnosed with iron deficiency anemia, with a diagnosis date of 2008. Symptoms were noted to include blood in his stool, which comes and goes, worse in the morning. The examiner noted reports of 10 bowel movements per day, with loose stools. It was noted that he had been on Humera in the past but was not currently taking due to financial reasons. Iron therapy was noted. The examiner noted that the Veteran's anemia requires intravenous iron infusions at least 1 time but less than 4 times in the past 12 month period and requiring continuous treatment with oral supplementation. It was noted that when his iron is low, he is very fatigued and weak. An April 2023 VA Intestinal examination was completed. It was noted that the Veteran had diarrhea, and anemia attributed his intestinal condition. The examiner specifically noted that the Veteran has serious complications or other general health effects attributable to his intestinal condition including iron deficient anemia that requires transfusions. As a threshold matter the Board notes the language of DC 7323 appears to focus on the frequency and severity of symptomatology, rather than specific symptoms. Here, taking the above into consideration, and resolving reasonable doubt in the Veteran's favor, the Board finds the Veteran's service-connected disability has more closely approximated the criteria for a 100 percent disability rating throughout the relevant appeal periods, as the evidence of record shows the condition has resulted in ongoing, pronounced symptoms to include anemia and chronic diarrhea requiring medical attention, and with serious complications requiring surgical intervention, throughout the appellate period. Importantly, the evidence of record shows the Veteran's condition has remained of similar severity throughout the appeal period, back to 2010. These records show the Veteran has experienced severe symptomatology associated with his service-connected disability, such as constant diarrhea, pain, and anemia, throughout the appellate period. These records also show the Veteran underwent multiple invasive procedures to assess his condition and that the noted symptomatology did not resolve nor is it fully controlled, throughout the appellate period. It is observed DC 7323 does not specifically contemplate the effects of medication; thus, the Board must discount the ameliorative effects of medication in assessing the applicable rating. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012); McCarroll v. McDonald, 28 Vet. App. 267, 271 (2016). Based on the above and the other evidence of record, to include the Veteran's testimony at the hearing, the Board finds the evidence of record is at least in equipoise as to whether his symptomatology has more closely approximated pronounced Crohn's disease resulting in marked anemia, and general debility or with serious complications throughout the appellate period. Resolving reasonable doubt in the Veteran's favor, and in view of the medical evidence demonstrating the Veteran's Crohn's disease has resulted in chronic diarrhea and anemia requiring constant medical monitoring and constant medication throughout the appellate period, the Board finds his condition has more closely approximated the criteria for a 100 percent disability rating pursuant to DC 7323 is warranted. Thus, a 100 percent disability rating for the Veteran's Crohn's disease is granted throughout the appellate period. 2. Entitlement to a TDIU. As the matter of entitlement to a TDIU was raised during the pendency of an appeal regarding the rating assigned to the Veteran's service-connected Chron's disease, it is considered part and parcel of the increased rating claim. Rice v. Shinseki, 22 Vet. App. 447 (2009). A TDIU rating is provided where the combined schedular evaluation for service-connected diseases and disabilities is less than total, or 100 percent. 38 C.F.R. § 4.16(a). A 100 percent rating under the Schedule for Rating Disabilities means that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990). The Board has granted a 100 percent disability rating for the Veteran's service-connected Crohn's disease status post intestinal resection and ileostomy (claimed with anemia) throughout the appellate period beginning February 26, 2010. Accordingly, the Board finds the matter of entitlement to a TDIU has been rendered moot by the Board's decision on the increased rating claim for the Veteran's Crohn's disease status post intestinal resection and ileostomy (claimed with anemia). See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for TDIU moot where 100 percent schedular rating was awarded for the same period). In rendering this decision, the Board has considered that a grant of a 100 percent disability does not always render the issue of TDIU moot. VA's duty to maximize a claimant's benefits includes consideration of whether his disabilities establish entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Specifically, SMC may be warranted if the Veteran has a 100 percent disability rating for a single disability, and VA finds that TDIU is warranted based solely on the disabilities other than the disability that is rated at 100 percent. See Bradley, 22 Vet. App. 280 (analyzing 38 U.S.C. § 1114 (s)); See also 75 Fed. Reg. 11, 229-04 (March 10, 2010) (withdrawing VAOPGCPREC 6-1999). The present case, however, is distinguishable from Bradley as the evidence of record does not show or suggest that the Veteran's other service-connected disability (ileostomy surgical scars) has rendered him unable to obtain and follow substantially gainful employment. As such, entitlement to a TDIU is rendered moot as a 100 percent schedular evaluation has been granted for the Veteran's Crohn's disease status post intestinal resection and ileostomy (claimed with anemia) for the entirety of the appeal period. The Veteran has not contended, and the record does not show or suggest, entitlement to a TDIU on any other basis other than his service-connected Crohn's disease status post intestinal resection and ileostomy (claimed with anemia). Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. M. Clark, 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.