Citation Nr: 25004292 Decision Date: 03/31/25 Archive Date: 03/31/25 DOCKET NO. 18-11 975 DATE: March 31, 2025 ORDER Prior to February 26, 2021, an initial rating higher than 10 percent for a digestive condition, to include resection of the small?and large?intestine, is denied. Prior to February 26, 2021, special monthly compensation (SMC) at the housebound rate is denied. ? FINDINGS OF FACT 1. Prior to February 26, 2021, the Veteran's digestive condition, to include resection of the small?and large?intestine, was manifested by no more than slight symptoms; peritoneum adhesions and diarrhea, anemia, and inability to gain weight are not shown. 2. Prior to February 26, 2021, the Veteran did not meet the schedular criteria for SMC at the housebound rate. CONCLUSIONS OF LAW 1. The criteria for an initial rating higher than 10 percent for a digestive condition, to include resection of the small?and large?intestine, prior to February 26, 2021, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.114, Diagnostic Code (DC) 7329. 2. The criteria for SMC at the housebound rate, prior to February 26, 2021, are not met. 38 U.S.C. § 1114; 38 C.F.R. § 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1982 to September 2012. The case is on appeal from an August 2013 rating decision. In February 2021, the Veteran testified at a Board hearing. In a January 2023 decision, the Board denied an initial 10 percent rating for a digestive disorder prior to February 26, 2021, and granted a 40 percent rating from that date; denied an initial compensable rating for a hernia disorder prior to February 26, 2021, and granted a 100 percent rating from that date; and granted SMC from February 26, 2021, but not earlier. The Veteran appealed the denial of an initial 10 percent rating for a digestive disorder prior to February 26, 2021, and the effective date for SMC to the United States Court of Appeals for Veterans Claims (Court). Pursuant to an October 2023 Joint Motion for Partial Remand (JMPR), the Court issued an October 2023 Order that vacated the Board decision with regard to the two noted claims and remanded the issues back to the Board for further development. In March 2024, the Board remanded the issues of an initial rating higher than 10 percent for a digestive disorder and SMC at the housebound rate, prior to February 26, 2021, based on a February 2024 challenge to the competence of the September 2021 and April 2022 VA examiners. See February 2024 Appellate Brief. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions 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). General 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. Staged ratings are appropriate whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). An effective date for an increased rating should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that the disability first manifested. Accordingly, the effective date for an increased rating-as well as for an initial rating or for staged ratings is predicated on when the increase in the level of disability can be ascertained. Swain v. McDonald, 27 Vet. App. 219, 224 (2015); DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011). 1. An initial rating higher than 10 percent for a digestive condition, to include resection of the small?and large?intestine, prior to February 26, 2021. Specific Legal Criteria Under DC 7328, for resection of small intestines, a 20 percent rating is warranted when symptomatic with diarrhea, anemia, and inability to gain weight. 38 C.F.R. § 4.114. A 40 percent rating is warranted when there is marked interference with absorption and nutrition, manifested by severe impairment of health objectively supported by examination findings including material weight loss. A 60 percent rating is warranted with marked interference with absorption and nutrition, manifested by severe impairment of health objectively supported by examination findings including material weight loss. Under DC 7329, resection of the large intestine with slight symptoms is assigned a 10 percent rating. 38 C.F.R. § 4.114. Moderate symptoms are assigned a 20 percent rating. Severe symptoms, objectively supported by examination findings, are assigned a 40 percent rating. Where residual adhesions constitute the predominant disability, resection of the large intestine is to be rated under DC 7301. Id., DC 7329, Note. The Board will consider the following dictionary definitions for DC 7329's subjective adjectives. "Slight," as an adjective, is defined as "small of its kind or in amount." Slight, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/slight, Definition 2, (last visited January 15, 2025). "Moderate," as an adjective, is defined as "limited in scope or effect." Moderate, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/moderate, Definition 5. "Severe," as an adjective, is defined as "causing discomfort or hardship"; "very painful or harmful"; "of a great degree." Severe, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/severe, Definitions 6a, 6b, and 8. Pursuant to 38 C.F.R. § 4.113, certain diseases of the digestive system, "particularly within the abdomen, which, 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." See 38 C.F.R. § 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 DC that reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. See 38 C.F.R. § 4.114. Analysis In a February 2025 Brief, the Veterans' attorney asserted that the severity of the Veteran's digestive condition rendered him housebound. The Board notes that VA recently amended the Rating Schedule for evaluating digestive system disabilities effective May 19, 2024. See 89 Fed. Reg. 19375. The revised rating criteria apply to all claims received by VA or that are pending before the RO on or after May 19, 2024. As noted above, the Board's analysis is limited to whether an initial rating higher than 10 percent is warranted for the Veteran's digestive disorder prior to February 26, 2021, under the pre-amended rating criteria, DC 7329. Pursuant to the October 2023 JMPR, the parties agreed that the Board failed to provide adequate reasons and bases for the prior decision by failing to define the terms of degree, that is, the severity, against which it assessed the Veteran's digestive condition under DC 7329. Johnson v. Wilkie, 30 Vet. App. 245, 255 (2018). As noted above, slight used as an adjective means small of its kind or in amount. The Board notes that the regulation does not provide a single, universal definition of slight. See 38 C.F.R. Part 4. In addition, moderate used as an adjective means limited in scope or effect. Severe used as an adjective means causing discomfort or hardship; very painful or harmful; of a great degree. The Board notes that the term severe is used throughout the rating schedule, including in DC 7329, to indicate a very great degree of the specific listed disability, in order to differentiate between lesser (or sometimes greater) cases of that same disability within the specific DC. Within the context of DC 7329, which establishes a successive, tiered rating structure, it represents the highest or most extreme level. The Board has considered the assertions with respect to flare ups of gastrointestinal symptoms. See December 2021 Appellate Brief. However, prior to February 26, 2021, the evidence does not show functional impairment due to a digestive condition, to include resection of the small and large intestine, that is more than slight, including consideration of flare-ups. The Board notes that the findings on February 2013 VA intestinal surgery examination, including no diarrhea, no alternating diarrhea and constipation, no weight loss, and no inability to gain weight, are indicative of slight symptoms or functional impairment, not moderate. The examination states that the Veteran had no associated interference with absorption and nutrition and that the condition did not require an ileostomy or colostomy. The examination notes that the digestive condition did not require continuous medication for control and did not impact the Veteran's ability to work. Although the Veteran's August 2013 notice of disagreement (NOD) asserted that a 20 percent rating was warranted, November 2013 imaging showed a nonobstructive bowel gas pattern. A January 2016 record notes no weight loss without trying, and that the abdomen was nontender and not distended. In December 2016, the Veteran's abdomen was not distended and was nontender, and no abdominal swelling, mass, or lump was reported. In addition, the Veteran stated that he engaged in moderate exercise for 30 minutes most days of the week. A February 2017 record reflects that the Veteran denied abdominal pain, and in October 2017, the abdomen was not distended and was nontender to palpation. In November 2017, the Veteran denied abdominal pain, heartburn, and regurgitation, and in December 2017, he denied abdominal pain, nausea and vomiting, and diarrhea and constipation. The Board finds the symptoms are indicative of slight symptoms or functional impairment, not moderate. The Board notes that the Veteran is separately rated for abdomen scars, as well ventral hernia. The Board notes that the September 2021 VA intestinal surgery examination reflects no weight loss or inability to gain weight and no interference with absorption and nutrition attributable to resection of the small intestine due to the digestive condition. Although the examination notes the Veteran's description of stabbing abdominal pain and that he developed adhesions, the examination does not reflect peritoneal adhesions attributable to the intestine and notes 13 surgeries for a ventral hernia. In addition, January 2019 and February 2020 treatment records note no abdominal pain. In addition, as noted above, the effective date of the Board's grant of higher a 40 percent rating, effective February 26, 2021, in the January 2023 decision was based on the increase in severity reported by the Veteran at the February 2021 Board hearing as later validated by the April 19, 2022 VA examination. The Board notes that although the examination reflects fiber supplements and/or over the counter pain medication, a July 2016 VA examination notes that continuous medication was not required for the control of the Veteran's digestive/intestinal condition. The Board has not considered the effects of supplements or medication, to include antacids for reflux. See February 2021 Board hearing testimony. As noted above, a single evaluation will be assigned under the DC that reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. See 38 C.F.R. § 4.114. For the foregoing reasons, the Board finds that, prior to February 26, 2021, the evidence reflects no more than slight symptoms due to the digestive condition, including resection of the large or small intestine. The Board has considered whether any other potentially applicable DCs would provide for a higher disability rating. However, the evidence does not reflect that the symptoms would warrant a higher rating under a different DC. See 38 C.F.R. § 4.114. As noted above, a 20 percent rating under DC 7328 pertaining to resection of the small intestine requires symptoms of diarrhea, anemia, and inability to gain weight. In addition to the above, to include December 2017 records reflecting the Veteran denied abdominal pain, nausea and vomiting, and diarrhea and constipation, treatment records in May 2013, April 2014, and August 2015, and October 2019 reflect weight gain. In addition, the Board finds there was substantial compliance with the March 2024 Board remand. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required). As noted in the prior remand, in a February 2024 brief, the Veteran's representative challenged the competence of the September 2021 and April 2022 VA examiners. Specifically, the representative asserted that the September 2021 examiner, as a general practitioner, and the April 2022 examiner, as a nurse practitioner, did not have the specialized training, education, or experience that would qualify them to make an assessment with respect to the severity of the Veterans' digestive disorder. In March 2024, the RO provided the Veteran and his representative with the qualifications (specialty, credentials, education, years of medical and VA compensation experience, and relevant training) for the September 2021 and April 2022 VA examiners. The Board notes that the credentials reflected in the March 2024 Correspondence is consistent with that reflected in the web links referenced in the February 2024 Appellate Brief. Accordingly, the Board finds that the qualifications of the relevant examiners have been provided to the Veteran and thus, the February 2024 Francway challenge raised was satisfied. See Francway v. Wilkie, 940 F.3d 1304, 1308 (Fed. Cir. 2019). Once a challenge as to the competence of a VA examiner is raised, VA must satisfy its burden of persuasion as to the examiner's qualifications and respond to the challenge by providing information about the qualifications of a medical examiner to the veteran. Id. at 1307. The Board rejects the Veteran's argument that the September 2021 and April 2022 VA examiners lack the competence and expertise necessary to evaluate his digestive disorder. The September 2021 examination was conducted by a medical doctor (MD) and the September 2023 examination was performed by a nurse practitioner (NP). The Board notes that, by itself, the fact that the two examinations were performed by an MD and an NP, do not render the examiners unqualified or the examinations inadequate. See e.g., Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (VA satisfied its duty to assist when it provided a medical examination performed by a person who is qualified through education, training, or experience to offer medical diagnosis, statements, or opinions able to provide competent medical evidence, whether that is a doctor, NP, or PA.). To this end, an MD or NP may generally be considered as qualified through education, training and/or experience to offer medical diagnoses and opinions. Thus, in the absence of any specific objection to the competence of the examiners (other than that one is an MD, and one is an NP), the Board finds that the examiners who performed the September 2021 and April 2022 VA examinations were competent to do so in this case. See Cox, 20 Vet. App. at 569. The Board has satisfied its burden of persuasion as to the qualification of the VA examiners involved in this appeal. See Francway at 1308 (2019). Consequently, the challenge to the competency of the September 2021 and April 2022 examiners is without merit. Accordingly, the Board finds the examiners competent and the examinations adequate for adjudication purposes. In sum, the evidence is persuasively against an initial rating higher than the 10 percent currently assigned prior to February 26, 2021. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and an initial rating higher than 10 percent prior to February 26, 2021, for the Veteran's digestive condition, to include resection of the small?and large?intestine, is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 2. An effective date prior to February 26, 2021 for the award of SMC at the housebound rate. Legal Criteria SMC at the housebound rate is payable where a veteran has a single service-connected disability rated as 100 percent and (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). Leaving one's house for medical purposes cannot, by itself, serve as the basis for finding that one is not substantially confined for purposes of housebound benefits. Howell v. Nicholson, 19 Vet. Ap. 535, 540 (2006). Analysis The Veteran seeks SMC at the housebound rate prior to the currently assigned effective date in February 2021. In a February 2025 Appellate Brief, the Veterans' attorney asserted that the Veteran's digestive condition rendered him housebound since the date of the Veteran's October 2012 claim. As noted above, in the prior decision, the Board granted SMC at the housebound rate, effective February 26, 2021, the effective date of the Board's grant of a 100 percent rating for ventral hernia, with additional service-connected disability independently ratable at 60 percent or more. Thus, the issue is whether SMC at the housebound rate is warranted prior to that date. In addition, as noted in the October 2023 JMPR, prior to February 26, 2021, the Veteran did not have a single service-connected disability rated as 100 percent. Further, there is no evidence that the Veteran was permanently housebound by reason of service-connected disability or disabilities. The Board notes that an April 2017 rating decision granted a TDIU based on service-connected headaches and peripheral neuropathy of the lower extremities preventing the Veteran from securing or following substantially gainful employment. Thus, the Board finds that a TDIU was not based on a single service-connected disability. See also March 2017 VA 21-4138 (Statement in Support of Claim) (noting the Veteran was unable to work due to service-connected disabilities). Therefore, the Board finds that the Veteran's headaches and/or peripheral neuropathy of the lower extremities cannot be considered a separate 100 percent rating for SMC purposes, as the service-connected headaches and peripheral neuropathy of the lower extremities, at minimum, were both used to support the grant of a TDIU. Accordingly, as the Veteran did not have a single 100 percent rated disability, he did not meet the criteria for SMC pursuant to 38 U.S.C. § 1114(s). Here, prior to February 26, 2021, the Veteran did not have a single service-connected disability rated at 100 percent and was not in receipt of a TDIU due to a single service-connected disability. Further, there is no evidence that the Veteran was permanently housebound by reason of service-connected disability or disabilities. As noted above, although a February 2016 record reflect that he led a sedentary lifestyle, records in October 2016 state that he was staying at his daughter's home to take care of her child for a week while she was away. In addition, December 2016 records reflect that the Veteran stated he engaged in moderate exercise for 30 minutes most days of the week. Records in September 2017 reflect that the Veteran traveled to Puerto Rico to assist family members impacted by a hurricane. In sum, the evidence is persuasively against an effective date prior to February 26, 2021 for the award of SMC at the housebound rate. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and an effective date prior to February 26, 2021, for the award of SMC at the housebound rate, is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. RYAN T. KESSEL 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.