Citation Nr: 0005892 Decision Date: 03/03/00 Archive Date: 03/14/00 DOCKET NO. 96-30 555 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to a rating higher than 10 percent for ulcerative colitis. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. L. Kane, Associate Counsel INTRODUCTION The veteran had active military service from June 1979 to June 1995. This claim comes before the Board of Veterans' Appeals (Board) on appeal from an October 1995 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which, in pertinent part, granted service connection for ulcerative colitis, and assigned a 10 percent rating for the disorder. The 1995 rating decision also granted service connection for low back pain, rated 10 percent disabling. The veteran indicated in a September 1997 statement that he wished to withdraw this issue from his appeal. An appeal may be withdrawn in writing at any time before the Board renders a decision. See 38 C.F.R. § 20.204 (1999). This issue is, therefore, not before the Board. In September 1997, a hearing was held before the undersigned, who is the Board member making this decision and who was designated by the Chairman to conduct that hearing pursuant to 38 U.S.C.A. § 7107(c) (West Supp. 1999). In July 1998, the Board remanded this claim for additional development. The case is now back for appellate review. In testimony at the September 1997 hearing, the veteran referenced eye conditions that he felt resulted from medication for his service-connected colitis. It is unclear whether it was his intention to specifically raise a claim for secondary service connection. He is hereby advised of the need to file a formal claim with the RO if he wishes to do so. FINDING OF FACT The veteran's ulcerative colitis is manifested by increased frequency of bowel movements with occasional exacerbations that are controlled by medication; frequent exacerbations are not shown, and the disorder is no more than moderate in extent. CONCLUSION OF LAW A rating higher than 10 percent for ulcerative colitis is not warranted. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, and 4.114, Diagnostic Code 7323 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION As was noted earlier, in July 1998 the Board found that this well-grounded claim required further development and remanded the case for such development. The RO complied with the Board's 1998 Remand instructions. There is no evidence indicating that there has been a material change in the severity of the veteran's ulcerative colitis symptoms since he was examined in 1998, and sufficient evidence is of record to rate the service-connected disability properly. There is no indication of private or VA treatment records that the RO failed to obtain. Accordingly, no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). The veteran disagreed with the original disability rating assigned for his ulcerative colitis. There is a distinction between a claim based on disagreement with the original rating awarded and a claim for an increased rating. Fenderson v. West, 12 Vet. App. 119 (1999). The distinction may be important in determining the evidence that can be used to decide whether the original rating on appeal was erroneous and in determining whether the veteran has been provided an appropriate Statement of the Case (SOC). Id. at 126 and 132. With an initial rating, the RO can assign separate disability ratings for separate periods of time based on the facts found. Id. at 126. With an increased rating claim, "the present level of disability is of primary importance." Francisco v. Brown, 7 Vet. App. 55, 58 (1994). This distinction between disagreement with the original rating awarded and a claim for an increased rating is important in terms of VA adjudicative actions. Fenderson, 12 Vet. App. at 132. The Supplemental Statements of the Case (SSOCs) provided to the veteran identified the issue on appeal as evaluation of the service-connected ulcerative colitis. Throughout the course of this appeal, the RO has evaluated all the evidence of record in determining the proper rating. The October 1995 rating decision that granted service connection for this condition considered all the evidence of record in assigning the original disability rating. The RO did not limit its consideration to only the recent medical evidence of record, and did not therefore violate the principle of Fenderson. The veteran has been provided appropriate notice of the pertinent laws and regulations. Thus, the RO has complied with the substantive tenets of Fenderson in its adjudication of the claim. Disability ratings are intended to compensate reductions in earning capacity as a result of the specific disorder. The ratings are intended, as far as practicably can be determined, to compensate the average impairment of earning capacity resulting from such disorder in civilian occupations. 38 U.S.C.A. § 1155. Evaluation of a service- connected disorder requires a review of the veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1 and 4.2. Because this appeal is from the initial rating assigned to a disability upon awarding service connection, the entire body of evidence is for equal consideration. Consistent with the facts found, the rating may be higher or lower for segments of the time under review on appeal, i.e., the rating may be "staged." Fenderson v. West, 12 Vet. App. 119 (1999); cf. Francisco v. Brown, 7 Vet. App. 55, 58 (1994) (where an increased rating is at issue, the present level of the disability is the primary concern). Such staged ratings are not subject to the provisions of 38 C.F.R. § 3.105(e), which generally requires notice and a delay in implementation when there is proposed a reduction in evaluation that would result in reduction of compensation benefits being paid. Fenderson, 12 Vet. App. at 126. It is necessary to evaluate the disability from the point of view of the veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply, 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. The veteran's colitis is evaluated under Diagnostic Code 7323 at 10 percent. A 10 percent rating requires moderate ulcerative colitis with infrequent exacerbations. A 30 percent evaluation is warranted where there is evidence of moderately severe ulcerative colitis with frequent exacerbations. A 60 percent evaluation requires severe ulcerative colitis with numerous attacks a year and malnutrition, only fair health during remissions. A 100 percent evaluation requires pronounced ulcerative colitis resulting in marked malnutrition, anemia, and general debility, or with serious complication as liver abscess. The Board has reviewed all the evidence of record, which consists of the veteran's service medical records, VA outpatient records for treatment between 1995 and 1998, reports of VA examinations conducted in 1995, 1997, and 1998, private medical records for treatment between 1995 and 1998 from Rakesh Gupta, M.D., and Womack Medical Center, and the veteran's contentions, including those raised at his hearing in 1997. The primary symptom of the veteran's colitis is increased frequency of bowel movements. He has indicated since 1995 that he has 3-4 bowel movements per day. During the occasional exacerbations, this increases to 8-10 bowel movements per day. It is not shown, however, that the veteran has frequent exacerbations, which is required for a 30 percent rating. The medical evidence does show flare-ups of colitis, averaging two per year since his separation from service. There are extended periods of time when he experiences few, if any, symptoms. For example, from late 1996 until the fall of 1997 (i.e., approximately 8 months), he reported doing well without taking any medications. After experiencing increased symptoms in September 1997, he was in remission by October 1997 and remained in remission as of the last treatment records of record dated in March 1998. It is not shown that the veteran's ulcerative colitis is moderately severe. Despite his complaints of increased bowel movements, his colitis has had no affect on his general health. On retirement examination in March 1995, he weighed 204 pounds. His weight since his separation from service has actually slightly increased, which means that his ulcerative colitis has not been so severe that it has affected his weight. Moreover, his symptoms have not affected his nutritional status. Every laboratory test since his separation from service has shown normal blood and protein levels. This means that the alleged bloody stools have not been so severe that he has become anemic or suffered from malnutrition. He is clearly able to process food normally, as evidenced by stable weight and normal nutrition levels. The veteran has often denied that he has bloody stools, but has indicated that he has these occasionally. However, every testing of the stools since his separation from service has been negative for blood. Furthermore, colonoscopy in March 1995 showed left-sided colitis only. Barium enema in August 1995 was normal, with no evidence of colitis. Colonoscopy in December 1996 failed to show active ulcerative colitis, although there was evidence of slightly increased vascularity of the left colon. Colonoscopy in January 1998 showed that the colitis is limited to the distal colon with no evidence of disease in the descending colon. The VA examiner in 1998 concluded that the veteran's colitis is mild to moderate in degree and does not appear to affect his functioning. The Board agrees with that conclusion based on the above evidence. The veteran has not alleged that he has missed any time from work due to colitis, nor that symptoms of the disorder have in any manner interfered with his occupational functioning. The evidence does show that he has infrequent exacerbations of colitis, which are always controlled with medication. He has never had to be hospitalized due to colitis or undergone more serious medical intervention for the disorder. The evidence clearly shows that the veteran's colitis symptoms are moderate, at most. The medical evidence does not create a reasonable doubt that the symptoms warrant a higher rating. Accordingly, the Board finds that the preponderance of the evidence is against a rating higher than 10 percent for the veteran's ulcerative colitis. Furthermore, the Board has considered the possibility of "staged ratings" under the guidelines of Fenderson v. West, 12 Vet. App. 119 (1999). However, the colitis is not shown to have been more than moderate at any time during the evaluation period. ORDER A rating higher than 10 percent for ulcerative colitis is denied. GEORGE R. SENYK Member, Board of Veterans' Appeals