Citation Nr: 0006173 Decision Date: 03/08/00 Archive Date: 03/17/00 DOCKET NO. 95-22 041 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to an increased rating for Crohn's disease, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Richard Giannecchini, Associate Counsel INTRODUCTION The veteran had active military service from March 1961 to May 1965. A perfected appeal to the Board of Veterans' Appeals (Board) of a particular decision entered by a Department of Veterans Affairs (VA) regional office (RO) consists of a Notice of Disagreement (NOD) in writing received within one year of the decision being appealed and, after a Statement of the Case (SOC) has been furnished, a substantive appeal (VA Form 9) received within 60 days of the issuance of the Statement of the Case or within the remainder of the one-year period following notification of the decision being appealed. The present appeal arose initially from a December 1993 rating decision, in which the RO denied the veteran's claims for service connection for degenerative disc disease of the cervical and lumbar spine, claimed as secondary to the veteran's service-connected Crohn's disease, and also denied an increased rating for Crohn's disease, rated as 30 percent disabling effective from April 1987. The veteran filed an NOD in January 1994, and the RO issued a SOC in June 1995. The veteran filed a substantive appeal, also in June 1995. Supplemental statements of the case (SSOCs) as to an increased rating for Crohn's disease were issued in June 1997 and December 1999. It is noted that the veteran had requested a personal hearing, but subsequently withdrew that request. With specific regard to the matter of service connection for degenerative disc disease of the cervical and lumbar spine, as secondary to Crohn's disease, the Board notes that, in his VA Form 9 (Appeal to Board of Veterans' Appeals), filed in response to the SOC in June 1995, the veteran expressly stated that he had no desire to claim service connection for his back and neck conditions. His representative reaffirmed the withdrawal of the appeal as to those issues, in a VA Form 646 dated in October 1996, and noted that the only issue remaining on appeal pertained to an increased rating for Crohn's disease. The Board further notes that, in his January 1994 NOD and his June 1995 VA Form 9, the veteran contended that he suffered from ulcers as a result of taking medication for joint pain. The veteran reported that he believed the joint pain was related to his Crohn's disease. The Board liberally interprets these contentions as an informal claim for service connection for ulcers as secondary to his service-connected Crohn's disease. While this issue is not on appeal before us at this time, it is referred to the RO for additional development as may be warranted. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran's claims has been obtained by the RO. 2. On VA examination in July 1999, the veteran was noted as being well nourished, having a healthy appetite, lacking anemia, and evidencing well preserved sphincter tone. 3. The medical evidence does not show that the veteran's Crohn's disease results in malnutrition, anemia, or fairly frequent involuntary bowel movements. CONCLUSION OF LAW 1. The criteria for an evaluation greater than 30 percent for Crohn's disease have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.114, Diagnostic Code 7323 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Basis A review of the claims file reflects that, in May 1965, the veteran was service connected for regional enteritis, and awarded a 30 percent disability rating, effective from May 1965. In May 1968, the veteran's service-connected disability was rated as jejuno-ileitis, and the rating of 30 percent was continued. In January 1985, the disability was rated as Crohn's disease, and his rating was increased to 60 percent, effective from July 1984. In a January 1987 rating decision, the RO reduced the veteran's disability rating for Crohn's disease from 60 percent to 30 percent, effective from April 1987. In a March 1988 decision, the Board denied the veteran an increased rating greater than 30 percent for Crohn's disease. In April 1993, the veteran filed an increased rating claim for his service-connected Crohn's disease. In May 1993, the RO received medical records from the VA Medical Center (VAMC) in Altoona, dated from November 1991 to April 1993. These records reflected diagnoses of degenerative disc disease of the spine and low back pain, as well as treatment for Crohn's disease. In particular, an April 1993 treatment record noted the veteran had undergone four laminectomies on his low back. In July 1993, the veteran submitted to the RO a VA Form 21- 4138 (Statement in Support of Claim), in which he reported that his Crohn's disease had continued to worsen, and that he was having neck and low back problems. The veteran further reported that doctors had informed him that most of his medical problems stemmed from his Crohn's disease. In October 1993, the RO received VAMC Altoona medical records, dated from December 1988 to October 1993. In particular, the veteran was noted to have undergone physical therapy treatment following surgery on his lumbar spine. Additional records noted the veteran's treatment for degenerative joint disease of the cervical spine. Furthermore, records also reflected the veteran's complaints and treatment for Crohn's disease, with complaints of abdominal pain and nausea. A June 1991 record noted the veteran to be in good physical condition. In November 1993, the veteran was medically examined for VA purposes. He reported a history of Crohn's disease for 30 years, and complained of diarrhea with chronic cramps in his lower abdomen. The veteran also reported a history of neck and low back pain, with radiation down his left leg. He was noted to be taking Piroxicam, Percocet, and Motrin for the pain. On clinical evaluation, the veteran was noted as 5'10" tall and weighing 180 pounds. Palpation of the abdomen revealed generalized tenderness, with pain more severe in the right lower quadrant. There were no masses or adenopathies noticeable. A rectal examination was noted as being very painful, and revealed analstenosis, with hemorrhoid tags at 6 and 12. Examination of the veteran's cervical and lumbar spine revealed limitation of motion, with spasm of the lumbar paraspinal muscles. The examiner reported that he did not believe Crohn's disease was causing the veteran's neck and low back pain, and that the pain was probably the result of arthritis and a herniated disc, respectively. Also in November 1993, the veteran submitted a statement to the RO, in which he reported, in particular, that all the doctors he had seen in the past five years had associated all his physical problems with his Crohn's disease. The veteran also reported that he could not work, and, if he could, he did not believe anyone would hire him given his medical history. In a December 1993 rating action, among other things, the RO denied the veteran's increased rating claim for Crohn's disease. In January 1994, the veteran filed an NOD, dated that same month, in which he reported that his Crohn's disease was as bad as it ever had been, and that doctors had related many of his physical problems to the disease. In a subsequently filed VA Form 9, received by the RO in June 1995, the veteran reiterated his earlier contentions. In November 1996, the veteran was medically examined for VA purposes. He complained of chronic diarrhea (twenty to forty times a day), bad hemorrhoids, lower abdominal cramps, and an inflamed rectum due to the chronic diarrhea. The veteran's weight, at 180 pounds, was noted as stable, with it being the same as it had been the previous year. The examiner noted that there was no evidence that the veteran suffered from anemia, and he appeared well nourished. Furthermore, the veteran denied any tenesmus or suffering from intermittent fever. On clinical evaluation, there was pain on palpation of the left and right lower quadrant of the abdomen, with no finding of masses and bowel signs present. There were external hemorrhoids at three o' clock, six o'clock, and nine o'clock. There was some inflammation of the anal mucosa. The examiner's diagnosis was Crohn's disease, and he indicated that, based upon the veteran's history, it appeared the Crohn's disease was getting worse. In May 1997, the RO received VAMC Altoona medical records, dated from March 1996 to March 1997. These records noted the veteran's treatment for right foot pain and Crohn's disease. In particular, a March 1996 record noted test results indicating that a gastrointestinal series had revealed evidence of Crohn's disease. In July 1999, the veteran again underwent VA medical examination. The examiner noted that, following the veteran's discharge from service, he had worked for a brief period before sustaining a job-related injury that had rendered him completely disabled for gainful employment. It was reported that, as a result, the veteran had been receiving compensation since 1988. In addition, it was noted that the veteran had previously undergone a partial resection of his bowel with an end-to-end anastomosis, and had never worn a colostomy bag. It was noted that the veteran's current complaints were of persistent and watery diarrhea, and he could not remember the last time he had had a solid stool. The veteran reported that, on good days, he would go to the bathroom five to eight times, while on bad days he was forced to go to the bathroom 20-25 times. He further indicated that he was not incontinent, but that he did soil his pants. The veteran also complained of diffuse, ill- defined abdominal distress and occasional nausea and vomiting. The examiner described the veteran as being well- nourished, noted that his appetite was good, and observed that his weight had remained steady at around 180 pounds. In addition, the examiner reported that the veteran also complained of suffering from hemorrhoids that produced significant itching and intermediate bleeding. The veteran was noted to have undergone an endoscopy and colonoscopy in March 1999, and the diagnosis was external and internal hemorrhoids. A biopsy disclosed tubular and serrated adenoma. On clinical evaluation of the rectum, there were external tags surrounding the anal canal. There was no evidence of any fistula or sinuses, and sphincter tone was well preserved. It was also noted that a blood count had disclosed no finding of anemia. The examiner's diagnosis was inflammatory bowel disease diagnosed as Crohn's disease. He also noted that the veteran's Crohn's disease would prevent conventional treatment of his hemorrhoids. In November 1999, the RO received VAMC Altoona treatment records, dated from April 1999 to September 1999. These records noted the veteran's treatment for Crohn's disease. In particular, an April 1999 radiology report revealed a narrowed distal ileum which represented regional ileitis. There were no intrinsic filling defects, ulcerations, sinus tracks, or fistulas, and the visualized segments of the colon were not remarkable. The report's impression noted Crohn's disease of the small bowel, with no other abnormalities present in the small bowel including the ascending and transverse colon. A July 1999 treatment record noted the veteran's report of suffering from dysuria and having exacerbations of his Crohn's disease as well as low back pain. The examiner noted that the veteran's dysuria may have been the result of prostatitis. A September 1999 treatment record indicated that the veteran's bowels and bladder were functioning without difficulty and his Crohn's disease was stable. II. Analysis The veteran has submitted a well-grounded claim within the meaning of 38 U.S.C.A. § 5107(a). See Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990); Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). That is, the Board finds that he has submitted a claim which is plausible. This finding is based in part on the veteran's assertion that his service-connected Crohn's disease is more severe than previously evaluated. See Jackson v. West, 12 Vet.App. 422, 428 (1999), citing Proscelle v. Derwinski, 2 Vet.App. 629 (1992). The Board is also satisfied that all relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained, and that no further assistance is required to comply with the duty to assist him as mandated by 38 U.S.C.A. § 5107(a). Disability evaluations are determined by the application of a schedule of ratings which is based upon average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt shall be resolved in favor of the claimant, and 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. 38 C.F.R. §§ 3.102, 4.3, 4.7 (1999). 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 concern. See Francisco v. Brown, 7 Vet.App. 55, 58 (1994); 38 C.F.R. §§ 4.1, 4.2 (1999). The veteran's Crohn's disease is current evaluated as 30 percent disabling, with the disorder rated analogously under 38 C.F.R. § 4.114, Diagnostic Code (DC) 7323 for, "Colitis, ulcerative". Under DC 7323, a 30 percent rating is warranted when the colitis is moderately severe, with frequent exacerbations. The next higher evaluation, 60 percent, requires severe ulcerative colitis with numerous attacks per year, and malnutrition, and with health being only fair during remissions. A 100 percent evaluation is provided where the condition is pronounced with marked malnutrition, anemia, and general debility, or with serious complications such as liver abscesses. The Board is aware that, although the veteran has reported frequent attacks of diarrhea, he has not reported, nor does the medical evidence reflect, any malnutrition or anemia as is required for a 60 percent or a 100 percent rating pursuant to DC 7323. During his most recent VA examination in July 1999, the veteran was noted to be well nourished, to have a healthy appetite, to have maintained a steady weight of around 180 pounds, and not to be anemic. We also note that. on the basis of the functions affected, anatomical localization, and symptomatology, the veteran's disability could also be evaluated under the provisions of DC 7319, for irritable colon syndrome. However, the highest rating available under that Code is 30 percent. To warrant a 30 percent evaluation, the evidence must demonstrate severe irritable colon syndrome, with diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. 38 C.F.R. § 4.114, DC 7319 (1999). Otherwise, given the veteran's report that he soils his underwear, he could be rated by analogy to DC 7332, for impairment of sphincter control. However, even a 30 percent rating under that code requires wearing a pad due to occasional involuntary bowel movements. There is no evidence of record that reflects that the veteran has been forced to wear a pad. Furthermore, a 60 percent rating requires extensive leakage and fairly frequent involuntary bowel movements. The evidence of record does not reflect that the veteran suffers from fairly frequent involuntary bowel movements. While the veteran has reported that he suffers from diarrhea, he has also denied incontinence, and on clinical evaluation his sphincter tone was noted as well preserved. See 38 C.F.R. § 4.114, DC 7332 (1999). Therefore, we find that the preponderance of the evidence reflects that the degree of disability associated with the veteran's Crohn's disease is not commensurate with the manifestations required for a rating greater than the 30 percent rating which he is currently assigned under DC 7323. While the veteran has complained of abdominal discomfort and pain, frequent bowel movements, and chronic diarrhea, we conclude that the objective medical evidence does not reflect malnutrition, anemia, or fairly frequent involuntary bowel movements to warrant an increased rating. Thus, the veteran's claim for an increased rating must be denied. 38 C.F.R. §4.114, DCs 7319, 7323, and 7332. In reaching this decision, the Board has considered the doctrine of reasonable doubt under 38 U.S.C.A. § 5107(b) and 38 C.F.R. §§ 3.102, 4.3, but finds the evidence is not of such approximate balance as to warrant its application. The preponderance of the evidence is determined to be clearly against the veteran's claim for a rating higher than 30 percent at this time. Furthermore, the Board finds in this case that the evidence does not present an unusual disability picture so as to render impractical the application of the regular schedular standards and warrant consideration for referral for an extra-schedular evaluation under 38 C.F.R. § 3.321(b)(1) (such ratings may be authorized by the Under Secretary for Benefits or the Director of the Compensation and Pension Service). For example, the disability has not caused marked interference with employment or necessitated frequent hospitalization. See Shipwash v. Brown, 8 Vet.App. 218, 227 (1995), and Floyd v. Brown, 9 Vet.App. 94-96 (1996). ORDER Entitlement to an increased rating for Crohn's disease is denied. ANDREW J. MULLEN Member, Board of Veterans' Appeals