BVA9506062 DOCKET NO. 93-08 943 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to an increased rating for ulcerative colitis, currently rated 30 percent disabling. ATTORNEY FOR THE BOARD C.A. Skow, Associate Counsel INTRODUCTION The appellant served on active duty from June 1968 to April 1969. This matter came before the Board of Veterans' Appeals (the Board) on appeal from a November 1992 rating decision of the Indianapolis, Indiana, Department of Veterans Affairs Regional Office (VARO). CONTENTION OF APPELLANT ON APPEAL The appellant contends that, although his health is good and his intestinal disorder is in remission, his service-connected intestinal disorder warrants a rating in excess of the 30 percent currently assigned because it forced him to retire from his career. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of evidence is against a rating in excess of 30 percent for the appellant's service-connected ulcerative colitis disability. FINDING OF FACT The appellant's intestinal disorder is currently manifested by subjective complaints for some abdominal pain and diarrhea, but clinical findings are negative for fever, anorexia, weight loss, abdominal masses, or current manifestations of pathology, and is productive of no more than moderately severe exacerbations. CONCLUSION OF LAW The schedular criteria for an increased disability evaluation for ulcerative colitis are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.7, 4.2, 4.4, 4.114, Diagnostic Code 7323 (1994). REASONS AND BASES FOR FINDING AND CONCLUSION The Board finds that the appellant has submitted evidence which is sufficient to justify a belief that his claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991) and Murphy v Derwinski, 1 Vet.App. 78 (1990). Furthermore, the undersigned believes that this case has been adequately developed for appellate purposes by VARO and that a disposition on the merits is in order. Background The appellant served on active duty from June 1968 to April 1969. Service medical records reflect that the appellant had moderately severe ulcerative colitis and was deemed unqualified for retention in service. The appellant was subsequently discharged. By rating action dated April 1969, the appellant was service connected for ulcerative colitis at the 30 percent disability level. On VA examination in May 1970, the appellant complained that he passed blood in his stood about two weeks earlier and indicated that he had a recent hospital stay due to ulcerative colitis. The appellant reported that he generally enjoys a good appetite and digestive function. Clinical findings were negative for fever, poor nutrition, organomegaly, and abnormal bowel sounds. Moderate deep tenderness over the sigmoid area was found on abdominal palpation. A rectal examination revealed no fistula or hemorrhoids. Edematitis was shown in the lower rectum and the lower sigmoid was noted to be spasmodic. No ulcerations were seen. The impression from an x-ray study of the colon filled with barium was spastic colitis. The appellant was diagnosed with status ulcerative colitis involving the entire colon, rectal bleeding of unknown etiology, and spastic colitis by x-ray. VA hospital discharge summaries dated April and October 1971 reflect that the appellant was admitted for loose bowels. It was noted that the appellant had not followed the medical regimen previously outlined for control of his intestinal disorder. The appellant was diagnosed with ulcerative colitis, idiopathic, non- specific. He was discharged to the care of his family physician. A private medical statement from the appellant's family physician dated March 1977 along with private medical reports dated February to March 1977 reflect that the appellant was evaluated for intestinal problems. The appellant was diagnosed with Crohn's enterocolitis. The appellant's family physician noted that a person with this condition was likely to have frequent bowel movements, diarrhea, and bleeding from the bowel; he also noted that the appellant was weak and may sometimes be unable to work. A private hospital discharge summary dated August 1979 reflects that the appellant was evaluated and treated for Crohn's disease. A barium enema was performed which confirmed Crohn's disease. The appellant was subsequently discharged in good condition with outpatient follow-up care instructions. On VA examination in June 1981, the appellant reported that, if his intestinal condition worsened, surgery would be necessary according to his family physician. He complained of diarrhea, a knotted-like pain in the lower right side of his abdomen, weakness, and fatigue. On examination, the appellant appeared strong and robust at 151 pounds. Clinical findings were negative for rectal masses. The abdomen was soft, bowel sounds were hypoactive, and there was no evidence of edema or dehydration. Symptoms were noted to be remittent and intermittent, made worse by physical activities and stress, and improved with regular medicines. The appellant was diagnosed with ulcerative colitis by history. A barium enema study dated July 1992 by the appellant's private physician revealed a fistula tract between the proximal ascending colon and cecum, presumably related to known Crohn's disease, irregularity of the mucosal pattern of the terminal ileum compatible with Crohn's disease, and an irregular mucosal pattern of the pelvic colon in a pattern also compatible with Crohn's disease. In July and August 1992, the appellant requested an evaluation in excess of the assigned 30 percent rating. He argued that he was entitled to an increased evaluation because, due to this intestinal condition, he had to retire from the civil service in February 1979 and has been unable to subsequently maintain gainful employment. In support of his contention, the appellant submitted a copy of a personnel action report. This report reflects that the appellant was placed on disability retirement in February 1979 because he was unable to lift, bend or stand. In September 1992, a VA examination was conducted. The appellant reported working as a sales person for the past 11-months, and that he lost 3-4 months of work from his previous job with an ambulance service. The appellant further reported that his physical condition has not changed since his last VA examination. He takes no medication and avoids both spicy food and alcohol. The appellant complained of some diarrhea and abdominal pain, but denied nausea or vomiting. On examination, the appellant weighed 162.5 pounds, his skin was warm and dry, and his bowel sounds were normal. The abdomen was soft and flat without masses, tenderness or organomegaly. The appellant was diagnosed with ulcerative colitis by history without current manifestation of pathology. Analysis The appellant is seeking a rating in excess of 30 percent for his service-connected ulcerative colitis. 38 U.S.C.A. § 1155 (West 1991). In evaluating the appellant's request for an increased rating, the Board considers the medical evidence of record. The medical findings are compared to the criteria in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4 (1994). In so doing, it is our responsibility to weigh the evidence before us. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). 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 (1994). All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (1994). The Board has carefully reviewed the pertinent medical evidence, including the appellant's entire medical history in accordance with 38 C.F.R. § 4.1 (1994) and Peyton v. Derwinski, 1 Vet.App. 282 (1991), and concluded that the appellant is appropriately rated for his service-connected intestinal disorder at the 30 percent disability rating level. The schedular criteria for a disability evaluation in excess of 30 percent under diagnostic code 7323 provide a 60 percent rating for severe ulcerative colitis as shown by objective medical evidence of numerous attacks a year and malnutrition with only fair health during periods of remission; a 100 percent disability rating is warranted where there is pronounced ulcerative colitis resulting in marked malnutrition, anemia, and general debility, or with serious complication such as liver abscess. 38 C.F.R. § 4.114, Diagnostic Code 7323 (1994). A review of the record shows that the appellant's physical condition has not changed significantly between the VA examination conducted in June 1981 and September 1992. While complaints for some diarrhea and abdominal pain were noted on VA examination in September 1992, clinical findings were negative for fever, anorexia, weight loss, abdominal masses, or current manifestations of intestinal pathology. Furthermore, the appellant acknowledged that his intestinal disorder had not worsened both on VA examination in September 1992 and in his substantive appeal. In view of objective evidence for ulcerative colitis with no more than moderately severe exacerbations coupled with the appellant's statements, the Board finds that the weight of evidence is against entitlement to an increased disability evaluation, and that the appellant is appropriately rated at the 30 percent disability level. The application of the extraschedular provisions has been considered by the Board in light of the appellant's claim that he was placed on disability retirement in 1979 and is unable to engage in gainful employment because of his service-connected ulcerative colitis. 38 C.F.R. §§ 3.321(b), 3.340, 4.16 (1994). However, the Board finds that application extraschedular provisions is warranted in this case. There is no evidence that the appellant's service-connected intestinal condition presents such an unusual or exceptional disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. The undersigned believes that any interference with employment due to the appellant's condition is acknowledged by the 30 percent rating and that the record lacks objective evidence to establish that the appellant is, in fact, unemployable due to his service- connected intestinal disorder or service-connected disabilities. ORDER An increased rating for ulcerative colitis is denied. KENNETH R. ANDREWS, JR. Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.