Citation Nr: 0001404 Decision Date: 01/18/00 Archive Date: 01/27/00 DOCKET NO. 96-36 250 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for bronchial asthma. 2. Entitlement to an initial rating in excess of 20 percent for intervertebral disc syndrome. 3. Entitlement to an initial rating in excess of 10 percent for irritable bowel syndrome. ATTORNEY FOR THE BOARD James J. Dunphy, Counsel INTRODUCTION The veteran served on active duty from June 1975 to June 1995. In a February 1996 rating action, service connection was granted for the three disabilities at issue, and zero percent ratings were awarded for each, effective July 1, 1995. A 10 percent evaluation was awarded under 38 C.F.R. § 3.324. The veteran thereafter perfected an appeal. In an August 1996 rating action, the evaluation for asthma was increased to 10 percent, and, in a May 1998 rating action, to 30 percent. In that May 1998 rating action, the evaluation for the intervertebral disc syndrome was increased to 20 percent, and, in a July 1999 rating action, the rating for the irritable bowel syndrome was increased to 10 percent. These ratings were all made effective July 1, 1995. Because the veteran has not withdrawn his appeal, these issues are properly before the Board of Veterans' Appeals (Board). Shipwash v. Brown, 8 Vet. App. 218 (1995); AB v. Brown, 6 Vet. App. 35 (1993). FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran's appeals has been obtained. 2. The veteran's bronchial asthma is productive of no more than moderate impairment as evidence of frequent attacks with marked dyspnea on exertion between attacks is not present, and FEV-1 is 74.6 percent predicted and FVC/FEV-1 is 72 percent. 3. The veteran's intervertebral disc disease is productive of no more than moderate impairment and evidence of severe limitation of motion or severe intervertebral disc syndrome with recurring attacks, with intermittent relief is not present. 4. The irritable bowel syndrome is productive of frequent episodes of bowel disturbance; it is not productive of severe diarrhea, or diarrhea and constipation, with abdominal distress. The veteran's disability is productive of no more than moderate impairment. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 30 percent for bronchial asthma are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.97, Diagnostic Code 6602 (1996 and 1999). 2. The criteria for an initial rating in excess of 20 percent for intervertebral disc disease are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.71a, Diagnostic Code 5293 (1999). 3. The criteria for an initial rating in excess of 10 percent for irritable bowel syndrome are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.114, Diagnostic Code 7319 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background The veteran's service medical records are replete with treatment reports associated with each of his service- connected disabilities. Generally, regarding bronchial asthma, the reports show that although manifest prior to service, the veteran received continuous treatment for symptoms associated with bronchial asthma, including sleeplessness, shortness of breath and a productive cough. However, his asthma remained stable and well controlled with medication. Regarding the back disorder, the service medical records show that after exercising and lifting heavy items in the late 1970's, the veteran complained of low back pain and thereafter received continuous treatment. During service, the veteran participated in physical therapy, went to back school, and was placed on limited profile duty. Diagnoses made included lumbosacral herniated nucleus pulposus. For the irritable bowel syndrome, the service medical records generally document complaints of increased constipation and diarrhea and show treatment, outpatient and hospital, for upper and gastrointestinal complaints, to include irritable bowel syndrome. During service, diagnoses of diverticulosis and irritable bowel syndrome were made. After service, the veteran reported excruciating pain in the back after a recent fall when he was treated at the Bellevue Community College Health Clinic in May 1996. He was referred to the Pacific Medical Clinic, and reported at that time low back pain with recent exacerbation. He was able to reach his knee with left low back pain. Extension, left side bending and right side bending were to 50 percent of normal. Straight leg raising while sitting revealed restricted movement with low back pain and while supine was to 30 degrees on the left and 50 degrees on the right, with low back pain. He was tender to pressure on the low lumbar segment. Reflexes were 2+ bilaterally at the knee. They were 1+ at the right ankle and the physician was unable to elicit a reflex at the left ankle. Sensation was intact to light touch in the lower extremities, and he was able to heel and toe walk without any problems. He had decreased strength with left toe extension. The assessment was lumbar radiculopathy with left neurological deficits at the left lower extremity. The veteran underwent treatment for shortness of breath at the Snoqualmie Valley Hospital in June 1996. He reported a cough productive of yellow sputum, without fever, nasal congestion, or sore throat. He also denied any chest pain, nausea, vomiting or diarrhea. His lungs showed wheezing bilaterally. He was treated with inhalers and improved markedly. The veteran underwent a general medical VA compensation examination in July 1996, shortly after his discharge from service and almost immediately after the post service back injury. He gave a history of sharp left leg pain, and stated that surgical intervention had been recommended for a herniated nucleus pulposus, but that he had declined such surgery. He indicated that he used an inhaler for the asthma, but did not seek medical care for a respiratory problem on a regular basis. He also reported cramping and lower abdominal pain, occurring two to three times a week, along with alternating diarrhea and constipation. An occasional nonproductive cough was reported on examination. There was normal lung mobility, and, upon auscultation, there were scattered expiratory wheezes. Abdominal examination showed the veteran to be completely non tender to palpation. No masses were noted, and the bowel sounds were positive. Rectal examination was within normal limits. The veteran complained to slight tenderness to deep palpation in the L5 area of the back. Range of motion was excellent at the waist to anterior bending, and on posterior extension, bilateral bending, and rotation. Straight leg raising was positive on the left at 55 degrees, and his gait was within normal limits. Reflexes were symmetrical in the lower extremities, and there were no sensory deficits noted. He also underwent a spinal examination at that time. There were no sensory losses, and the straight leg raising, which was positive on the left at 55 degrees, was consistent with the results on the general medical examination. The diagnosis was herniated nucleus pulposus, by history. On examination of the intestine, it was reported that the veteran's weight was 176 pounds, with a maximum weight in the previous year of 185 pounds. There was no evidence of anemia or malnutrition on examination. He denied nausea, but complained of alternating diarrhea and constipation. The diagnosis was irritable bowel syndrome, by history. Finally, the veteran underwent a trachea and bronchi examination. There was no evidence of cyanosis, clubbing of the extremities, productive cough, sputum, or infectious disease. On pulmonary function tests (PFT), effort and cooperation were good. There was a mild obstructive/restrictive ventilatory defect. The diagnosis was asthma. Reports of VA outpatient treatment are of record. In June 1997, he required refills of his inhalers. He also reported chronic pain in the left lower extremity due to the back disorder. The veteran underwent a cystourethrotomy in August 1997. In a September 1997 note, the veteran reported pain traveling down from the left buttock into the left leg and noted that in the past, he had undergone physical therapy and used a transcutaneous electrical nerve stimulation (TENS) unit. On examination, the back was symmetrical without deformity, with good range of motion. Additionally, deep tendon reflexes were equal, 2+ at the patellar and 1+ at posterior tibia with equal strength. When he was seen in November 1997, although the veteran complained of lower back pain with radiation, the spine was not tender to light touch. Flexion was possible to 20 degrees with pain. A November 1997 electromyograph (EMG) also revealed no evidence of chronic radiculopathy of lumbar segments. The diagnosis was degenerative disc disease. In a March 1998 letter, a VA physician noted that a colonoscopy performed on the veteran in February 1998 showed extensive diverticulosis, and a colectomy was recommended. The veteran underwent a series of VA compensation examinations in January 1998. On neurological examination, he stated that he had tingling of the toes of the left side, and that the right leg was without symptoms. There was normal alignment of the spine with the exception of slight exaggeration of the lumbosacral lordosis. Spine range of motion was excellent. Rotation was to 60 degrees with extension to 30 degrees, and forward flexion to 60 degrees. There was mild tenderness to percussion throughout the lumbar spine, and he had a negative straight leg raising bilaterally. Knee jerk was 3+, with ankle jerk of 3+. There was normal pinprick at all points with the exception of a questionable reduction over the anteromedial aspect of the left foot as compared to the right foot. Also, although there was questionable weakness of the peroneus and hamstring, decent extensor hallucis and anterior tibia strength, as well as normal quadriceps, adductor, abductor and psoas were noted. Gait was essentially normal. The examiner concluded that the findings were highly suggestive of lumbosacral radiculopathy, possibly of the L5 root given the relatively normal examination. In an April 1998 addendum, the diagnosis was lumbosacral radiculopathy- intervertebral disc syndrome of lumbar spine, asymptomatic at this time. He also underwent a respiratory examination at that time. He reported daily wheezing, and indicated that since taking medication, this had become a chronic more than acute problem. He also reported a productive cough, without hemoptysis, anorexia or noticeable attacks of asthma. He indicated that he could walk up to two miles at his own pace or walk up two flights of stairs, but this made him short- winded and increased wheezing. There were no localizing signs in the chest, color was good, and evidence of cyanosis was not present. Mild bronchospasm was heard all lung fields, even on normal respiration. PFT's showed FEV1 was 74.6 percent of predicted value, with FEV1/FVC of 72 percent. A chest X-ray was normal. The diagnosis was extrinsic bronchial asthma, and the veteran was advised to stop smoking. Finally, he underwent a compensation examination of the intestines. He did not report any rectal bleeding. He indicated that he had diarrhea, varying from every seven days to two or three times a week. Between these episodes, the veteran reported constipation. His weight was stable, with no nausea, vomiting or fistula, malnutrition, or anemia. On examination, there was no abdominal pain, and examination of the abdomen was negative. The examiner stated that the veteran had episodes of constipation, perhaps twice a week between bouts of diarrhea. Constipation was episodic and irregular. The diarrhea possibly occurred from several times a week to once in ten days. This was also irregular. The diagnoses were diverticulosis with three episodes of diverticular bleeding, resolved at this time; and irritable bowel syndrome, long-standing, stable. Analysis When a claimant is awarded service connection for a disability and subsequently appeals the RO's initial assignment of a rating for that disability, the claim continues to be well grounded as long as the rating schedule provides for a higher rating and the claim remains open. Shipwash v. Brown, 8 Vet. App. 218, 224; see also AB v. Brown, 6 Vet. App. 35. As such, the veteran's claims are well grounded. Upon reviewing the evidence of record, the Board also notes that the VA has met its statutory duty to assist the veteran in the development of the claim. 38 U.S.C.A. § 5107. Under the laws administered by the VA, disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. 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. Also, it is the defined and consistently applied policy of the VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. 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.A. § 5107; 38 C.F.R. §§ 3.102, 4.3 (1999). Bronchial asthma When, during the pendency of a claim, a regulation changes, the Board must review the veteran's claim under both versions of the regulation and apply the version most favorable to the veteran. Karnas v. Derwinski, 1 Vet. App. 308 (1991). The Board first considered the criteria in effect at the time the veteran submitted his claim. The 30 percent rating was warranted for moderate bronchial asthma, with asthmatic attacks rather frequent (separated by 10 to 14 day intervals) with moderate dyspnea on exertion between attacks. For a 60 percent rating to have been warranted, the asthma must be severe in nature, with frequent attacks of asthma (one or more attacks weekly) marked dyspnea on exertion between attacks and only temporary relief on medication, with more than light manual labor precluded. 38 C.F.R. § 4.97, Diagnostic Code 6602 (In effect prior to October 7, 1996). A review of the findings on examination and treatment show that the veteran used an inhaler, but did not seek medical care. A report of private medical treatment in June 1996 showed that the inhalers led to marked improvement. There was no history of frequent asthmatic attacks consistent with the criteria for a 60 percent rating. Moreover, on repeated examinations, there was normal lung mobility, without hemoptysis or anorexia. A chest X-ray was negative. On the most recent examination, the veteran could walk up to two miles at his own pace. Although he complained of shortness of breath and wheezing, there were no localizing signs of the chest. Reports of outpatient treatment were consistent with the findings on examination, showing the use of an inhaler but not the need for regular treatment. Given such findings, the clinical data shows that the veteran's bronchial asthma is productive of no more than moderate impairment, and an increased rating under the former criteria is not appropriate. 38 C.F.R. § 4.7. The Board must further consider the veteran's claim under the criteria currently in effect. The new criteria provides that a 30 percent rating is warranted when the FEV-1 is 56 to 70 percent of predicted, or the FEV-1/FVC is 56 to 70 percent, or daily inhalational or oral bronchodilator therapy is required, or inhalational anti-inflammatory medication is required. For a 60 percent rating to be warranted, the FEV-1 must be 40 to 55 percent of predicted, or FEV-1/FVC of 40 to 55 percent or at least monthly visits to a physician for required care of exacerbations, or intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. 38 C.F.R. § 4.97, Diagnostic Code 6602. PFT was undertaken on the most recent VA compensation examination, in January 1998. At that time, FEV-1 was 74.6 percent of the predicted value, and FEV1/FVC was 72 percent. Moreover, while the veteran used a bronchodilator, his treatment regimen does not support a 60 percent rating. In particular, there was no requirement for monthly physician visits, and an intermittent regimen of corticosteroids is not shown to be required. Hence, under the criteria currently in effect, a rating in excess of 30 percent is not warranted. 38 C.F.R. § 4.7. As previously noted, the veteran's disability has been evaluated under the old and new criteria. It is also noted that the Board is cognizant that Francisco v. Brown, 7 Vet. App. 55, 58 (1994) ("Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary importance."), is not applicable to the assignment of an initial rating for a disability following an initial award of service connection for that disability. Fenderson v. West, 12 Vet. App. 119 (1999). Rather, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found-a practice known as "staged" ratings. Id. However, after reviewing the evidence of record presented in this case, particularly evidence received from the time of the veteran's application to the 1996 rating action, the Board finds that the veteran's disability was not shown to be more than 30 percent disabling during any period when service connection was in effect. Thus, the application of stage ratings in this matter is not warranted. Intervertebral disc disease The regulation provides that a 20 percent rating is appropriate when the intervertebral disc disease is moderate in nature, with recurring attacks. For a 40 percent rating to be warranted, the disorder must be severe in nature, resulting in recurring attacks, with intermittent relief. Pronounced intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, little intermittent relief is rated at 60 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5293. In this case a review of the findings on examination and treatment do not show that the disorder is more than moderate in nature; thus, an increased rating is not warranted. While the veteran reported excruciating pain in the back on private medical treatment in May 1996, this was after a recent fall. Moreover, when the veteran was examined for compensation purposes in July 1996, after this fall, there were no sensory losses, and straight leg raising was only positive on the left at 35 degrees. On the most recent examination, straight leg raising was negative bilaterally. Additionally, range of motion was excellent, and the veteran retained a knee jerk and ankle jerk of 3+. The Board notes that the veteran's ankle jerk was 1+ right and the examiner was unable to elicit a left ankle jerk when the veteran received the noted treatment in May 1996. However, this was after a post service injury, and this acute symptomatology was not reflected in the examination thereafter or the most recent examination. The findings on recent examination were also essentially consistent with the reports of outpatient treatment. On recent examination, the diagnosis was lumbosacral radiculopathy - intervertebral disc syndrome of lumbar spine, asymptomatic at this time. Given such limited symptomatology, the medical evidence does not show that the veteran's disability is productive of severe or pronounced impairment; thus, an increased rating on a schedular basis is not appropriate. 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5293. Entitlement to an increased rating in excess of 20 percent under the provisions of 5292 is not warranted either. Diagnostic Code 5292 provides that moderate limitation of motion warrants a 20 percent evaluation and severe limitation of motion warrants a 40 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5292 (1999). As noted above, evidence of severe limitation of motion of the lumbar spine is not present. Although VA outpatient treatment reports show flexion limited to 20 degrees with pain, on VA examination in 1996 and on recent examination in 1998, no evidence of severe impairment was demonstrated. In 1996, range of motion was excellent at the waist to anterior bending, and on posterior extension, bilateral bending, and rotation. In 1998, rotation was to 60 degrees with extension to 30 degrees, and forward flexion to 60 degrees. In light of the foregoing, entitlement to an increased rating in this regard is not warranted. 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5292. The U.S. Court of Appeals for Veterans Claims (Court) has held that when a diagnostic code provides for compensation based upon limitation of motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 (1999) must also be considered, and that examinations upon which the rating decisions are based must adequately portray the extent of functional loss due to pain "on use or due to flare-ups." DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). The provisions of 38 C.F.R. § 4.40 hold that disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like relate to functional loss. The provisions of 38 C.F.R. § 4.45 require consideration of such factors with regard to the joints as less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); excess fatigability; and incoordination, impaired ability to execute skilled movements smoothly or pain on movement, swelling, deformity or atrophy of disuse. In spite of the veteran's complaints of pain and the positive clinical findings of record, the evidence does not show that the veteran's disability is productive of severe limitation of motion. 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5292. As noted above, by history and currently, the veteran's range of motion has been excellent. Thus, under Diagnostic Code 5292, an increased rating is not warranted. 38 C.F.R. §§ 4.40 and 4.45. Additionally, in a December 1997 opinion, VAOGCPREC 36-97, the General Counsel of VA held that DeLuca was applicable to the evaluation of disability due to intervertebral disc syndrome. Nevertheless, because the veteran's disability is not productive of severe or pronounced intervertebral disc syndrome, even when considering his complaints of pain and the positive finding of intervertebral disc syndrome, an additional rating in this regard also is not warranted. In this case, the record is devoid of any findings showing increased impairment due to evidence of disuse, atrophy, or joints with less or more movement than normal, weakened movement, excess fatigability, or incoordination. Again, in 1997 EMG findings were normal and on recent examination, reflexes and strength were normal throughout and the veteran has normal pinprick at all points. Further it is noted that in making determinations with regard to the application of 38 C.F.R. §§ 4.40 and 4.45, the Board is bound by the holding in VAOGCPREC 9-98 (August 14, 1998), which held that these provisions must be considered in light of the relevant Diagnostic Code governing schedular criteria. Thus, entitlement to an increased rating in this regard is not warranted. Additionally, regarding Fenderson v. West, 12 Vet. App. 119, the Board finds that the veteran's disability was not shown to be more than 20 percent disabling during any period when service connection was in effect. Although evidence shows that there was significant loss of function in May 1996, after his post service fall, on examination in July 1996, there was only slight tenderness, and range of motion was excellent. Further on recent examination in January 1998, range of motion was again excellent, straight leg raising was negative, and gait was normal. There was no report of pain on movement, and no swelling, deformity, or atrophy was present. Given such limited findings, the clinical data shows that the veteran's back disability, by history or currently, has not resulted in more than moderate limitation of motion or intervertebral disc syndrome. Thus, the evidence does not support the veteran's claim of entitlement to an increased rating in excess of 20 percent during any period when service connection has been in effect. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5293. Irritable bowel syndrome The regulation provides that a 10 percent rating is appropriate when there is moderate irritable bowel syndrome, causing frequent episodes of bowel disturbance with abdominal distress. A 30 percent rating is warranted when the disorder is severe, resulting in diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. 38 C.F.R. § 4.114, Diagnostic Code 7319. A review of the findings on examination and treatment do not show that the findings are of sufficient severity to warrant an increased rating in excess of 10 percent. On examination in July 1996, the veteran reported alternating diarrhea and constipation. But, clinical findings were essentially normal and the diagnosis was irritable bowel syndrome, by history. Similar symptomatology was reported on the most recent VA compensation examination in January 1998. However, on each examination, there was no abdominal pain and examination of abdomen was stable. The veteran's weight was relatively stable and evidence of no nausea or vomiting was not present. Further on recent examination, the diagnosis was irritable bowel syndrome, long standing and stable and diverticulosis with three episodes of diverticular bleeding, resolved. At this time, the Board notes that diverticulosis was reported in a March 1998 letter, and a colectomy was recommended. However, the Board points out that there is no medical evidence of record demonstrating that the veteran's disability has increased in severity and it is unclear if a colectomy was ever accomplished. It is also noted that by July 1999 and October 1999 supplemental statements of the case, the veteran was apprised of applicable law and regulation associated with his claim and provided adequate reasons and bases for the RO's determination. However, the veteran has neither indicated the presence of any additional information nor submitted any additional medical evidence indicating that his irritable bowel syndrome is productive of more that moderate impairment. As such, after considering the overall symptomatology noted on examinations and treatment reports, the medical evidence shows that the veteran's irritable bowel syndrome is no more than moderate in degree, and as such, an increased rating in excess of 10 percent is not warranted. 38 C.F.R. §§ 4.3, 4.7, 4.114, Diagnostic Code 7319. Additionally, as indicated in the above discussion, the mandates of Fenderson have been considered. Nevertheless, the medical evidence, by history and currently, does not show that entitlement to an increased rating in excess of 10 percent for any period since service connection has in effect is warranted. Thus, the veteran's claim is denied. ORDER Entitlement to an initial rating in excess of 30 percent for bronchial asthma is denied. Entitlement to an initial rating in excess of 20 percent for intervertebral disc syndrome is denied. Entitlement to an initial rating in excess of 10 percent for irritable bowel syndrome is denied. C. Crawford Acting Member, Board of Veterans' Appeals