Citation Nr: A25034663 Decision Date: 04/15/25 Archive Date: 04/15/25 DOCKET NO. 240926-477397 DATE: April 15, 2025 ORDER A disability rating in excess of 30 percent for the service-connected irritable bowel syndrome (IBS) is denied. FINDING OF FACT The Veteran's 30 disability rating for irritable bowel syndrome with hemochromatosis is the maximum schedular rating for irritable colon syndrome pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7309, and there is no other Diagnostic Code under the schedule of digestive disorders that rates symptoms more analogous to the Veteran's IBS. CONCLUSION OF LAW The criteria for a disability rating in excess of 30 percent for the service-connected irritable bowel syndrome with hemochromatosis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.20, 4.21, 4.114, Diagnostic Code 7319. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1980 to February 1994. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2024 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which is an agency of original jurisdiction (AOJ). In that rating decision, the RO determined that sustained material improvement in the Veteran's IBS had not been shown, and therefore confirmed and continued a 30 percent rating for IBS, rather than effectuate a proposed rating action issued in August 2023. In September 2024, the Veteran appealed the February 2024 rating decision to the Board by submitting a VA Form 10182 Decision Review Request: Board Appeal (notice of disagreement or NOD), indicating disagreement with the current disability rating assigned. The Veteran selected the Direct Review docket. See 38 C.F.R. § 20.202. As the Veteran selected the Direct Review docket, the Board is limited to review of the evidence in the record up to and until the February 8, 2024, rating decision. See 38 C.F.R. § 20.202(b). If evidence was associated with the claims file during a period of time when additional evidence was not allowed, the Board has not considered it in its decision on the claim on appeal. 38 C.F.R. § 20.300. If the Veteran would like VA to consider any evidence that was added to the claims file that the Board could not consider in this decision, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. An August 2023 rating decision granted a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, effective November 2, 2022. This encompasses the entire period on appeal covered by this claim. Notably, the Veteran listed several other disabilities from earlier rating decisions in her September 2024 NOD. The appeal to those rating decisions is untimely because the September 2024 NOD was received more than one year after those rating decisions (and notice thereof) was issued. Accordingly, only the timely appeal listed on the cover page, is addressed in this decision. 38 C.F.R. § 3.2500(a)(1). None of the untimely appeals have been docketed at the Board, and as such will not be addressed here. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Staged ratings must be considered, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that warrant different ratings for distinct time periods during the appeal. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). See also Fenderson v. West, 12 Vet. App. 119, 126 (1999) (applying this concept to initial ratings). It is the Board's responsibility to determine whether the totality of the probative evidence persuasively weighs in favor of the claim or whether the evidence is in approximate balance, with the veteran prevailing in either event; or whether this evidence persuasively weighs again the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). See also, Lynch v. McDonough, 21 F.4th 776 (2021). Entitlement to a disability rating in excess of 30 percent for the service-connected irritable bowel syndrome (IBS) As noted above, this appeal involves the February 2024 rating decision that determined that a reduction in the previously assigned 30 percent disability rating for the service-connected IBS was not warranted. The proposed reduction was issued in August 2023, and it was not initiated based on a claim for an increased rating. Rather, in November 2022, the Veteran filed a VA Form 21-8940, Application for a TDIU. As such, the AOJ scheduled several VA examinations to evaluate the severity of the Veteran's service-connected disabilities, including the Veteran's IBS. Pursuant to December 2022 VA examination findings, the RO proposed to reduce the 30 percent disability rating for the service-connected IBS. Following an August 2023 rating decision that granted a TDIU, due in part to the Veteran's service-connected IBS; and, several August 2023 statements from the Veteran as to the severity of her symptoms, the RO determined that a rating reduction for IBS was not warranted, and therefore issued the February 2024 rating decision that continued the previously assigned 30 percent rating. The rating decision specifically indicates that sustained overall improvement in the Veteran's IBS symptoms was not shown based on a totality of the evidence. The rating decision also listed the criteria for the 30 percent disability rating for IBS, and also noted that a 30 percent rating is the highest schedular rating assignable under the criteria for rating IBS. The Veteran nevertheless appealed that determination, indicating disagreement with the 30 percent rating assigned for the service-connected IBS; however, neither the Veteran nor her representative has provided any evidence or argument as to why a rating in excess of 30 percent should be assigned. Additionally, the Veteran has not identified any additional or unusual symptoms of her service-connected IBS that are not contemplated by the rating criteria for IBS and neither the Veteran nor her representative has raised any other issues and no other issued are reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 368 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). The Veteran's IBS is rated as 30 percent disabling pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7319, which evaluates irritable colon syndrome. For the period covered by the instant appeal, the regulations do not provide a specific Diagnostic Code for "irritable bowel syndrome," however the symptoms under the rating criteria for irritable colon syndrome are closely analogous, and therefore the Veteran's IBS is appropriately rated under Diagnostic Code 7319. Under Diagnostic Code 7319, a noncompensable rating is warranted for mild irritable symptoms with disturbances of bowel function with occasional episodes of abdominal distress. A 10 percent rating is warranted for moderate symptoms with frequent episodes of bowel disturbance with abdominal distress. A maximum rating of 30 percent is warranted for severe symptoms with diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. 38 C.F.R. § 4.114, Diagnostic Code 7319. In March 2024, portions of the schedule for rating Disabilities of the Digestive System under 38 C.F.R. § 4.114, including the criteria for rating IBS under Diagnostic Code 7319, were amended. The amendments took effect on May 19, 2024, and therefore do not apply to this appeal as they became effective after the February 2024 rating decision on appeal. The history of this appeal starts with a November 2, 2022, claim for a total disability rating based upon individual unemployability (TDIU) due to her service-connected disabilities. The Veteran stated that she was unable to secure or follow substantially gainful employment due to her service-connected posttraumatic stress disorder (PTSD), IBS, and anemia. With her claim, the Veteran submitted a private medical opinion for TDIU. The opinion stated that the Veteran's IBS requires restroom facilities in proximity and bathroom breaks are needed for toileting. The Veteran had a VA examination in December 2022. The Veteran reported the onset in 1985 with abdominal pain, diarrhea, and cramps. The Veteran reported having a colonoscopy and endoscopy in the past. Current symptoms were noted as alternating episodes of diarrhea and constipation, with medications of Kaopectate, Imodium, and Omeprazole. The examiner noted symptoms of intermittent bowel movements with loose watery stool but mark no episodes of bowel disturbances with abdominal distress or exacerbations f attacks of the intestinal condition. The examiner opined that the Veteran's IBS does not affect physical or sedentary activities. In an August 2023 rating decision, the RO proposed to reduce the Veteran's service-connected IBS from 30 percent to noncompensable, based on the results from the December 2022 VA examination. In the same month, the Veteran submitted a statement requesting a hearing on the proposed reduction. Additionally, the Veteran submitted a statement that if she doesn't take her medication for even one day, her stomach "acts up." The Veteran also stated that she can't eat away from home because of her need for the bathroom and that she has been having more problems with her IBS because the medication isn't strong enough. The Veteran requested that the RO not reduce her disability rating. In a January 2024 report of general information, the RO documented that they contacted the Veteran and indicated that they would not complete the reduction and would continue the 30 percent disability rating. The scheduled hearing was cancelled by agreement. The February 2024 rating decision continued the 30 percent disability rating for the service-connected IBS. In deciding not to reduce the disability rating, the RO considered the Veteran's lay statements that if she stopped taking her medication, she would have much worse symptoms. Where the diagnostic code does not specifically outline use of medication in the criteria, the ameliorative effects of medication may not be considered in evaluating the disability. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). Stated another way, when assigning an evaluation, if the diagnostic code under which the Veteran is evaluated "does not specifically contemplate the effects of medication, the Board is required pursuant to Jones to discount the ameliorative effects of medication." McCarroll v. McDonald, 28 Vet. App. 267, 271 (2016). Here, the Veteran and her December 2022 VA examination show she is on daily and continuous medication for her service-connected IBS, and the Veteran reports the medication is crucial to keep her symptoms controlled. As such, the evidence is at least approximately balanced as to whether the service-connected IBS, when discounting the ameliorative effects of medication, manifests in severe diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress which is consistent with the currently assigned 30 percent rating. (Continued on the next page) ? The 30 percent disability rating for IBS is the maximum schedular rating available by analogy for irritable colon syndrome. See 38 C.F.R. § 4.114, Diagnostic Code 7319. The Board has carefully reviewed the rating schedule and finds no other diagnostic code more analogous or that would provide a basis to grant a higher rating for this disability. Accordingly, the evidence persuasively weighs against assignment of a disability rating in excess of the maximum 30 percent assigned for the service-connected irritable bowel syndrome during this period on appeal, and the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107(b), 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Robinson, C. B. 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.