Citation Nr: 0007995 Decision Date: 03/24/00 Archive Date: 03/28/00 DOCKET NO. 97-15 915 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUE Entitlement to an increased evaluation for irritable bowel syndrome, currently evaluated as 10 percent disabling. ATTORNEY FOR THE BOARD L. M. Barnard, Counsel INTRODUCTION The veteran served on active duty from November 1978 to November 1981 and from February 1983 to February 1986. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a May 1995 rating decision of the San Juan, Puerto Rico, Department of Veterans Affairs (VA), Regional Office (RO), which denied entitlement to the requested benefit. The veteran was informed by a November 1999 supplemental statement of the case of the continued denial of her claim. The record does not show that the RO expressly considered referral of this case to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1999). The United States Court of Appeals for Veterans Claims ("the Court") has recently held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from considering whether referral to the appropriate first-line official is required. The Board is still obligated to seek out all issues that are reasonably raised from a liberal reading of documents or testimony of record and to identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). Moreover, the Court has also held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only when circumstances are presented which the Director of Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Having reviewed the record with these holdings in mind, the Board finds no basis for action on the question of the assignment of an extraschedular rating. FINDING OF FACT The veteran's irritable bowel syndrome is manifested by complaints of watery diarrhea six or more times per day, proceeded by colicky abdominal distress. CONCLUSION OF LAW The criteria for the maximum schedular evaluation of 30 percent for the veteran's irritable bowel syndrome have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 1991); 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, Diagnostic Code 7319 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, she has presented a claim which is plausible. It is also found that all relevant facts have been properly developed. The record is devoid of any indication that there are other records available which should be obtained. Therefore, no further development is required in order to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Under the applicable criteria, disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1999). When a question arises as to which of two evaluations shall be assigned, the higher evaluation will be assigned of 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 (1999). VA has a duty to acknowledge and consider all regulations which are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons used to support the conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). These regulations include, but are not limited to, 38 C.F.R. § 4.1, that requires that each disability be viewed in relation to its history and that there be an emphasis placed upon the limitation of activity imposed by the disabling condition, and 38 C.F.R. § 4.2 which requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. These requirements for the evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decision based upon a single, incomplete or inaccurate report and to enable VA to make a more precise evaluation of the disability level and any changes in the condition. The Board notes that while the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The veteran was awarded service connection for irritable bowel syndrome by a rating action issued in November 1986. This condition was assigned a 10 percent disability evaluation, effective February 15, 1986. A VA examination conducted of the veteran in February 1994 indicated her complaints of occasional diarrhea with burning epigastric pain. There was no indication of dehydration. On March 30, 1995, her private physician noted that the veteran had been first evaluated on February 16, 1995 due to complaints of abdominal pain, cramps, bloating and alternating diarrhea and constipation. A colonoscopy had shown marked spastic changes. A VA outpatient treatment record from April 1995 referred to diarrhea, cramping pain and tenesmus. She denied blood in the stool. The veteran was examined by VA in September 1996. She claimed that she experienced 6 to 8 bowel movements per day, following the ingestion of meals. She would develop borborygmus and low abdominal cramping pain, which was followed by explosive watery diarrhea. Tenesmus was sometimes present. The objective examination noted that she was six feet tall and weighed over 250 pounds (her weight over the past year had been 240 pounds). He abdomen was soft and depressible, with no visceromegaly or masses and normal peristalsis. There was no anemia and she denied periodic vomiting, recurrent hematemesis or melena. The diagnosis was irritable bowel syndrome. VA outpatient treatment records developed between June 1996 and June 1999 showed the veteran's complaints in June 1996, September 1996, December 1997 and January 1998 of abdominal discomfort and diarrhea. She was examined by VA in September 1999. She claimed that she had very frequent bowel movements during the day, indicating that these would occur approximately 6 times per day, usually 30 to 45 minutes after a meal. She would have abdominal cramping followed by watery diarrhea. She also referred to tenesmus. She denied having blood or mucous in the stool. She also denied vomiting or hematemesis. She described having colicky abdominal pain. She denied the occurrence of constipation. Her weight was reported to be 270 pounds and her abdomen was globose due to fat; her bowel sounds were positive and her abdomen was soft and depressible with no hepatomegaly. The diagnosis was irritable bowel syndrome. According to the applicable criteria, a 10 percent evaluation is warranted for moderate irritable bowel syndrome, with frequent episodes of bowel disturbance with abdominal distress. A 30 percent evaluation requires severe irritable bowel syndrome, with diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. 38 C.F.R. Part 4, Code 7319 (1999). After a careful review of the evidence of record, the Board finds that the maximum schedular evaluation of 30 percent is warranted for the veteran's irritable bowel syndrome. The medical evidence of record consisting of the outpatient records dated from 1996 through 1999, when read together with the clinical findings on the VA examinations of 1996 and 1999, reflect in the opinion of the Board that the veteran experiences more or less constant abdominal distress, as manifested by, essentially, a bout of watery diarrhea proceeded by stomach pain after every meal (six times a day). Her frequent visits for outpatient care for this problem, together with her contentions on appeal and the findings on the aforementioned VA examinations convinces the Board that her disability as increased in severity since the prior evaluation. Therefore, the Board concludes that the 30 percent evaluation more closely approximates the current degree of disability. 38 C.F.R. § 4.7 (1999). ORDER An increased rating for irritable bowel syndrome to 30 percent is granted, subject to the law and regulations governing the payment of monetary benefits. CHRISTOPHER P. KISSEL Acting Member, Board of Veterans' Appeals