BVA9503517 DOCKET NO. 93-08 911 ) DATE ) ) On appeal from a decision of the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to restoration of a 30 percent evaluation for ulcerative colitis, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The veteran and his wife ATTORNEY FOR THE BOARD E. A. Artman, Associate Counsel INTRODUCTION The record indicates that the veteran served on active duty from June 1982 to July 1985. This matter comes before the Board of Veterans' Appeals (Board) of the Department of Veterans Affairs (VA) on appeal from a February 1992 rating decision of the Hartford, Connecticut, Regional Office (RO). This decision placed into effect a January 1992 hearing officer's decision which determined that it was appropriate to implement a proposed reduction of the disability evaluation assigned for the veteran's service-connected ulcerative colitis. The reduction, which was set forth in a September 1991 rating, was from a 30 percent evaluation to that of a 10 percent evaluation. The veteran, who had presented argument against the rating, subsequently expressed his disagreement with the February 1992 rating action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that no improvement has occurred in his service-connected condition since the assignment of a 30 percent disability evaluation for his ulcerative colitis in November 1989. The veteran asserts that he continues to be greatly inconvenienced by this disorder; he has testified that he is incapable of working for others and that, as a self-employed construction worker, his workday is frequently interrupted by his need to attend to the wants of nature. His wife has asserted that their social activities and his ability to spend time alone with their children is also curtailed by the disabling effects of his ulcerative colitis. 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 the evidence is in favor of the veteran's claim for restoration of a 30 percent evaluation for ulcerative colitis. FINDINGS OF FACT 1. All facts pertinent to the veteran's claim for restoration of an evaluation have been fully developed for purposes of adjudication. 2. Sustained improvement of the veteran's ulcerative colitis has not been demonstrated. 3. Results of a September 1991 VA examination and more recent medical and lay evidence support a finding that the veteran experienced frequent exacerbations of his ulcerative colitis at the time his evaluation for such was reduced and throughout the pendency of his appeal for restoration of his 30 percent evaluation. CONCLUSION OF LAW Restoration of a 30 percent evaluation for ulcerative colitis is warranted by the evidence. 38 U.S.C.A. §§ 5107, 7104 (West 1991); 38 C.F.R. §§ 3.105(e), 3.344, 4.114 including Code 7323 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. A review of the record shows that the veteran was granted service connection for ulcerative colitis by a September 1989 rating action. The September 1989 rating board assigned a 30 percent evaluation for disability resulting from this disorder. The rating action indicates that the board's determinations were in part based on evidence contained in service medical records. The veteran first began complaining of diarrhea in the spring of 1982, at which time he was worked-up for ulcerative colitis. Chronic diarrhea with heme-positive stool developed and he was being followed-up for stomach cramps/diarrhea by August 1983. Enterocolitis was considered by an examiner in March 1985. The September 1989 rating board also considered the results of a VA examination which was performed in June 1989. These results, which are somewhat illegible, show that the veteran reported that he continued to experience 3 to 4 exacerbations of his service- connected condition of 1 to 2 days' duration. It appears that he also reported that the last bloody stools he had noticed had occurred three months earlier. Upon physical examination, it was noted that his nutrition was good and that no abdominal abnormalities were present. He weighed 202 pounds. A rectal examination also yielded normal findings. Based on these results, the examiner provided an assessment of ulcerative colitis, which was noted to be active. In addition, the examiner noted that the veteran's employment opportunities were clearly limited, since he worked in a blue-collar occupation. The veteran was next examined by VA for rating purposes in September 1991, at which time the examiner noted that a colonoscopy had been performed in 1990 with grossly normal results. It was noted that, nevertheless, the veteran had a history of acute and chronic inflammation. At the time of the examination, the veteran complained of intermittent crampy abdominal pain and stated that he had between 2 to 4 bowel movements a day, which were often loose. He described his stools as occasionally bloody. It was noted that he experienced minimal nocturnal diarrhea, but that he suffered from chronic low back pain. Upon physical examination, it was noted that he weighed 209 pounds. There was a mild tenderness of the right lower quadrant, but no limitation in the range of motion (presumably of the veteran's spine) was present. An impression of chronic ulcerative colitis, mildly active, was provided, with a notation that further testing was indicated in order to rule out sacroiliitis. (X-ray studies performed that day showed the veteran's lumbar spine and sacroiliac joints to be normal.) On the basis of the September 1991 examination results, a rating board, which met later that month, proposed reduction of the veteran's evaluation for his ulcerative colitis to 10 percent. The veteran contested the reduction by appearing before a hearing officer to present testimony, along with that of his wife, regarding his condition. At this December 1991 hearing, he stated that he continued to take medication for his colitis and that, because of increased problems with bloody stools, he visited his doctor once a month. He added that his weight could fluctuate during an exacerbation of his condition by as much as 12 to 15 pounds, but that he always regained the weight later on. The veteran stated that he was self-employed in the construction business and that, because of the stress of his work, he frequently took a week or two off in between job assignments in order to sufficiently relax. As noted in the introduction section of this decision, the hearing officer affirmed the September 1991 proposal for reduction in a decision issued by her in August 1992. VA treatment records subsequently associated with the claims folder reflect that, when seen in October 1989, the veteran weighed 202 pounds and complained of an average of 5 to 6 bowel movements per day, loose and formed. Over the past 2 to 3 weeks, he had been experiencing diarrhea, which had been recently improving. He reported a 5-pound weight loss during the recent exacerbation of symptoms. When seen in March 1991, the veteran weighed 210 pounds and reported two bowel movements in the "A.M." and 2 to 3 in the "P.M." He reported rare abdominal cramping. There were no systemic complaints. In May 1991, his weight was 199 pounds. He reported increasing abdominal cramps after he ran out of prescribed medication. VA treatment records show that the veteran underwent another colonoscopy in November 1991 and a sigmoidoscopy in October 1992. The results of the later procedure revealed a tiny hemorrhoid on anoscopy but otherwise normal results of the anus; erythema and edema of the rectum; and a three-millimeter sessile polyp in the transverse of the sigmoid, which had normal-appearing mucosa to the mid-transverse. Biopsy results later confirmed a diagnosis of the polyp in the transverse of the colon and ulcerative colitis of the rectum. An October 1991 outpatient treatment note reflects complaints of occasional nocturnal diarrhea and bleeding. In December of that year, the veteran reported 3 to 4 bowel movements in the morning, occasional cramps, no nocturnal diarrhea and variable diarrhea with bright red blood. His treating physician, in a June 1992 statement, reported treatment for chronic ulcerative colitis of moderate activity. Daily medication was required. The most recent outpatient treatment report of record, dated in September 1992, shows that the veteran reported having between two and six bowel movements a day and, during approximately three nights a week, one more. He stated that he occasionally had bloody stools and that his symptoms interfered with his work, since frequently there were no available facilities at his worksite. Based on this information, an impression of ulcerative colitis, of mild to moderate activity, was provided. Of significant import is the testimony presented by the veteran and his wife at a hearing conducted by a hearing officer in June 1992. On this occasion, the veteran described how the exacerbations of his condition affected him on approximately 15 days out of every month, and that bloody stools were not uncommon during these times. In addition, he stated that, on at least two nights each week, his sleep was interrupted by three to four bowel movements. He stated that on approximately four occasions a week he soiled himself. When asked how his disability affected his ability to work, the veteran explained that he only completed about 30 hours of work a week and typically worked between 4 to 5 hours a day because of the interruptions created by his frequent need to go to the bathroom. (In a later statement, received by the RO in November 1992, the veteran re-iterated that, due to the nature of his employment, he frequently does not work in close proximity to facilities.) He stated that he, in large part, worked for himself because his condition rendered him unable to obtain employment by others. When questioned about medications, he named five that he took on a daily basis in addition to a multi-vitamin. When asked if his condition had grown worse since leaving the service, he stated that the severity of it fluctuated, but that it had increased (at the time of the hearing) to the point where it was at least as severe as when he was in the service. The veteran and his wife both made statements to the effect that their social activities were severely restricted due to his condition. His wife added that his ability to spend time alone with their children was also limited, since he generally did not feel well and was "crabby". II. The Board initiates its analysis of the issue of whether a restoration of the veteran's evaluation is warranted by noting that it finds his claim to be well-grounded for purposes of 38 C.F.R. § 5107(a) (1993). The veteran has asserted that his service-connected condition has continued to be of such severity that a reduction of his 30 percent evaluation was not merited. See Proscelle v. Derwinski, 2 Vet.App. 629 (1992). Furthermore, we find that the Board has met its duty to assist the veteran in the development of all facts pertinent to his well-grounded claim. See Grottveit v. Brown, 5 Vet.App. 91 (1993). Thus, we find it appropriate to proceed to an analysis of the veteran's claim on its merits. By regulation, a reduction in an assigned disability evaluation is permissible where it can be demonstrated, through the issuance by the RO of a proposal setting forth all material facts and reasons for a reduction, that such an action is warranted. See 38 C.F.R. § 3.105(e) (1993). In addition, 38 C.F.R. § 3.344 (1993) sets forth guidelines to be considered by rating agencies when handling cases affected by a change of medical findings or diagnosis. These guidelines are to be implemented so as to produce the greatest degree of stability of disability evaluations consistent with the laws and regulations governing disability compensation. They direct the agencies to reflect the following considerations in their reduction determinations: whether the most recent examination is full and complete, when compared to prior examinations upon which payments were authorized or continued; whether, in instances where a reduction involves a disease subject to temporary or episodic improvement, the evidence of record is such as to warrant the reduction based on the results of one examination; and whether evidence of material improvement in the physical or mental condition of a veteran indicates a reasonable certainty that said improvement will be maintained under the ordinary conditions of life. § 3.344(a). Pursuant to the veteran's appeal, his representative requested that consideration of the provisions § 3.344 be accorded by the Board. We respond by initially noting that § 3.344(c) restricts application of guidelines set forth under § 3.344(a) and (b) to those cases involving ratings which have remained in effect for long periods of time, five years or more. It further states that the guidelines are not intended to apply to disabilities that have not become stabilized and are likely to improve. Re-examinations which disclose physical improvement in these disabilities will warrant a reduction in rating. § 3.344(c). Because the veteran's 30 percent evaluation had only been in effect for three years when the RO issued its proposal for reduction, we cannot conclude that it was incumbent upon the RO to adhere to the guidelines set forth under § 3.344(a). Likewise, the Board is not bound to restore the 30 percent evaluation on the basis that the evidence reviewed by the September 1991 rating board failed to comport with each of the pertinent considerations of § 3.344(a). Consequently, we do not find, as suggested by the representative's argument, that we are required to apply the guidelines of § 3.344(a) to the issue before us. On the other hand, we find the provisions of § 3.344 to be highly relevant to the issue of whether a restoration is warranted. Although service connection was established for his ulcerative colitis in September 1989, the rating action of that date shows that the disorder first became manifest in the spring of 1982. Hence, by the time of the September 1991 proposal, the veteran had experienced chronic symptomatology of his disorder for nearly ten years. This lengthy period of time suggests to the Board that a degree of stability had been acquired with respect to the severity or incapacity of his condition by the time the reduction was proposed. Therefore, while we do not find it incumbent upon the Board to ascertain that the evidence comports to each relevant provision of § 3.344, we do find it appropriate to reflect upon these guidelines in a case where, at the time the reduction was proposed, the disability at issue, as opposed to the rating therefor, may properly be characterized as stable. The Board notes that the September 1991 results, when compared to the June 1989 results, provide no clear indication that the veteran's condition had improved in the intervening period. The fact that the veteran was still experiencing bloody stools and having frequent bowel movements demonstrates that his symptoms had not been significantly alleviated. Perhaps the only clear distinction between the results of the two examinations is that the veteran reported, at the June 1989 examination, 15 to 20 bowel movements per day during exacerbations while, at the latter examination, he reported no such specific symptoms during exacerbations. Additionally, the impression on the latter examination contains the modification of the veteran's ulcerative colitis as being "mildly" active. However, the significance of this modification must be questioned in light of the similarity of clinical findings contained on the two examinations. Thus, we do not find that the results of the September 1991 examination clearly warrant the conclusion that improvement in the veteran's condition had taken place, or that such improvement had been sustained over time. Under § 3.344(a), a conclusion, based on all of the evidence of record, that sustained improvement has been demonstrated, is the standard by which the propriety of reducing an evaluation for a disease subject to temporary or episodic improvement is to be measured. There is little, if any, indication that the veteran's condition experienced sustained improvement between the time of his June 1989 VA examination and that of September 1991 when one compares treatment notes during this time period. Because we find it appropriate to consider the veteran's disability as one which is subject to episodic improvement (as indicated by the veteran's own testimony that his symptomatology is alleviated through a reduction of stress), this conclusion factors into a finding that the February 1992 reduction was not supported by the evidence. Therefore, the Board finds that, upon reflection of the provisions of § 3.344(a), a reduction of the veteran's 30 percent evaluation was not warranted, due to the relative stability his condition had acquired by the time of the proposal and the failure on the part of the record to clearly establish that sustained improvement of his condition had taken place prior to the proposal being effectuated. Under the rating schedule, a 10 percent evaluation is provided for ulcerative colitis which is moderate, as manifested by infrequent exacerbations, and a 30 percent evaluation is provided for that which is moderately severe, as manifested by frequent exacerbations. 38 C.F.R. § 4.114, Code 7323 (1993). Significant weight is attached to the testimony provided at the June 1992 hearing which, along with the earlier hearing, represents the most complete recitation of symptoms and the frequency thereof. At the June 1992 hearing, the veteran stated that exacerbations affected a total of approximately 15 days out of each month. This, along with his other detailed testimony, fully substantiates that which is indicated by his medical evidence; that his colitis results in frequent exacerbations. Therefore, the evidence supports a finding that this disorder is disabling to at least a moderately severe degree, thereby warranting restoration of the 30 percent evaluation. The Board finds that the preponderance of the evidence weighs in favor of restoration of the veteran's 30 percent evaluation for ulcerative colitis. Accordingly, his claim is granted. ORDER Restoration of a 30 percent evaluation for ulcerative colitis is granted, subject to the laws and regulations governing the award of monetary benefits. BARBARA B. COPELAND 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.