Citation Nr: A22005214 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 190820-26748 DATE: March 24, 2022 ORDER Entitlement to an increased rating higher than 30 percent for lymphocytic colitis is denied. FINDING OF FACT The Veteran's service-connected lymphocytic colitis is not more nearly manifested by symptoms of severe colitis with numerous attacks per year and malnutrition with health only fair during remissions. CONCLUSION OF LAW The criteria for a disability rating in excess of 30 percent for lymphocytic colitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7399-7323. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active-duty service in the U.S. Navy from August 2012 to January 2013 and May 2014 to December 2014. The rating decision on appeal was issued on February 25, 2019, and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In an August 2019 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket. The Veteran testified at a virtual hearing of the Board of Veterans' Appeals (Board) before a Veterans Law Judge on February 5, 2021. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). The Veteran testified at the February 2021 Board hearing that his symptoms associated with his lymphocytic colitis were worse. If the Veteran has any evidence addressing his symptoms, he may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 1. Entitlement to an increased rating higher than 30 percent for lymphocytic colitis The Veteran contends that a higher rating is warranted for his lymphocytic colitis. The Veteran testified at the February 2021 Board hearing that his symptoms were worse, so he was trying a new medication and also that he was seeing a nutritionist to help with his diet. See February 2021 Board hearing transcript, pp. 3-4. He noted that he had diarrhea at least 15 times per day causing immune system problems and recently rashes all over his body. He also asserts that his disability affects his work in that he cannot work in an office and cannot commute safely to work. The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating in excess of 30 percent. The Board concludes that the Veteran's symptoms did not cause the level of impairment required for a disability rating of in excess of 30 percent. Neither the lay nor the medical evidence of record more nearly reflect that lymphocytic colitis is manifested by severe symptoms with numerous attacks per year and malnutrition with health only fair during remissions. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7399-7323. Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. A disability may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. The Veteran's disability is currently rated at 30 percent under Diagnostic Code 7399-7323. 38 C.F.R. § 4.114, Diagnostic Code 7323. Hyphenated codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. The hyphenated diagnostic code here indicates an unlisted digestive system disorder, Diagnostic Code 7399, rated by analogy under the criteria for ulcerative colitis under Diagnostic Code 7323. See 38 C.F.R. § 4.20. Diagnostic Code 7323 provides a 30 percent disability rating for moderately severe ulcerative colitis characterized by frequent exacerbations. A 60 percent disability rating is warranted for severe ulcerative colitis characterized by numerous attacks per year and malnutrition, with the residual health assessed as fair during remissions. A 100 percent disability rating is warranted for pronounced ulcerative colitis characterized by marked malnutrition, anemia, and general debility, or with serious complication such as liver abscess. 38 U.S.C. § 4.114, Diagnostic Code7323. The words "mild," "moderate," and "severe" are not defined in the VA Schedule for Ratings Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of such terminology by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The rating schedule provides that ratings under Codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 inclusive, will not be combined with each other. A single evaluation will be assigned under the Code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such evaluation. 38 C.F.R. § § 4.114. VA and private treatment records, the August 2015, January 2018, and January 2019 VA examinations, and the Veteran's lay statements show that the Veteran's lymphocytic colitis was manifested by diarrhea, abdominal pain, bloating, gas, nausea, constipation, bowel urgency, and frequent bowel movements. However, none of the treatment records or VA examinations of record indicate any malnutrition; with health only fair during remissions. An August 2016 private treatment record shows that the Veteran denied weight loss associated with his diagnosis of lymphocytic colitis. The VA examinations in August 2015, January 2018, and January 2019 also noted that the Veteran did not have any malnutrition, complications, or other general health effects. The January 2019 VA examination indicated a five-pound weight loss due to the lymphocytic colitis but specifically noted that there was no malnutrition associated with this condition. While the symptoms associated with the Veteran's lymphocytic colitis are significant in that he has frequent diarrhea and abdominal pain and gas, which could arguably be consistent with severe ulcerative colitis characterized by numerous attacks per year, the Veteran does not have any malnutrition, with health only fair during remissions. See 38 C.F.R. §§ 4.7, 4.114, Diagnostic Code 7323. As the diagnostic criteria indicate severe colitis with numerous attacks a year and malnutrition, the malnutrition aspect is required for the 60 percent rating for the Veteran's lymphocytic colitis. The Board has also considered whether a higher rating under Diagnostic Code 7319 is warranted. Diagnostic Code 7319 provides the highest rating of 30 percent for severe irritable colon syndrome with severe diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. 38 C.F.R. § 4.114. As 30 percent is the highest schedular rating for irritable colon syndrome, a higher rating is inapplicable. Also, a separate disability rating for symptoms consistent with irritable colon syndrome is not warranted as this would violate the rule against pyramiding given that the symptomatology is duplicative and overlapping. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Board has considered the lay testimony and evidence of record to include that he had diarrhea at least 15 times per day causing immune system problems and recently rashes all over his body, as well as rashes in the anal area from the frequent diarrhea. The Veteran also testified that his symptoms were worse, so he was trying a new medication and also that he was seeing a nutritionist to help with his diet. These statements are competent and credible. However, whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran's complaints coupled with the medical evidence. Both the lay and medical evidence are probative in this case. Although the Veteran may believe that he meets the criteria for a higher disability rating, his complaints along with the medical findings do not more nearly reflect the criteria for a higher evaluation, as explained and discussed above. Medical evidence at the time of the February 2019 decision and within 90 days of the February 2021 Board hearing does not reflect any immune system problems or rashes all over the Veteran's body or anal area associated with his lymphocytic colitis. A June 2016 VA treatment record notes that the Veteran had a rash on his toe, which was assessed as dermatitis, and was not related to lymphocytic colitis. Again, as indicated above, the Veteran can submit a Supplemental Claim if he believes his condition has now worsened along with submitting or identifying new and relevant evidence. 38 C.F.R. § 3.2501. As for the Veteran's contentions that his disability affects his work in that he cannot work in an office and cannot commute safely to work, as noted, the percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. While the Veteran's disability affects his ability to work, the disability rating assigned is meant to compensate him for this impairment. Also, of note, while the August 2015 and January 2018 VA examination reports noted that the Veteran's intestinal condition impacted his ability to work because his would work would be interrupted from going to the bathroom, the January 2019 VA examination report noted that the Veteran's lymphocytic colitis did not impact the Veteran's ability to work. In addition the Veteran testified at the Board hearing that he was able to work on his computer from home, although he had to make frequent trips to the bathroom. See February 2021 Board hearing transcript, p. 6. In short, the evidence weighs against finding that the Veteran's symptoms resulted in the level of impairment required for a 60 percent rating or higher under Diagnostic Code 7323. Accordingly, the claim is denied. As there is not an approximate balance of positive and negative evidence, there is no doubt to resolve. 38 U.S.C. § 5107 (b). RAY BARTO SLABBEKORN, JR. Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sarah B. Richmond, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.