Citation Nr: 1736568	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  14-23 562	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia


THE ISSUES

1.  Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) with unspecified depressive disorder.

2.  Entitlement to increases in the (0 percent prior to July 14, 2016 and 30 percent from that date) staged ratings assigned for irritable bowel syndrome (IBS).


REPRESENTATION

Appellant represented by:	Attorney Jan Dils


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

D. Schechner, Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty for training from June 1993 to December 1993, and on active duty from December 1994 to August 1998 and from July 2007 to July 2008.  These matters are before the Board of Veterans' Appeals (Board) on appeal from October 2012 and March 2013 rating decisions by the Huntington, West Virginia RO.  In July 2015, a Travel Board hearing was held before the undersigned; a transcript of the hearing is in the record.  In June 2016, the Board remanded the matters for additional development.  An interim [March 2017] rating decision granted a 30 percent rating for IBS, effective July 14, 2016.


FINDINGS OF FACT

1.  The Veteran's PTSD with unspecified depressive disorder is not shown to have been manifested by symptoms productive of impairment greater than occupational and social impairment with reduced reliability and productivity; symptoms productive of occupational and social impairment with deficiencies in most areas are not shown.

2.  Prior to July 14, 2016, the Veteran's IBS was not shown to have been manifested by more than mild symptoms and related impairment; moderate irritable colon syndrome with frequent episodes of bowel disturbances with abdominal distress were not shown.

3.  From July 14, 2016, the 30 percent rating assigned is the maximum schedular rating provided for IBS; more than severe disability is not shown; symptoms or impairment not encompassed by schedular criteria are not shown, not specifically alleged.  
CONCLUSIONS OF LAW

1.  A rating in excess of 50 percent is not warranted for the Veteran's service-connected psychiatric disability.  38 U.S.C.A. §§ 1155, 5107 (West  2014); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.130, Diagnostic Code (Code) 9411 (2016).

2.  Ratings for IBS in excess of 0 percent prior to July 14, 2016, and in excess of 30 percent from that date are not warranted.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.114, Code 7319 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)

As the rating decision on appeal granted service connection and assigned disability ratings and effective dates for the awards, statutory notice had served its purpose, and was no longer required.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).  A June 2014 statement of the case (SOC) provided notice on the "downstream" issues of entitlement to increased initial ratings, and a March 2017 supplemental SOC (SSOC) readjudicated the matters after the Veteran had the opportunity to respond.  38 U.S.C.A. § 7105; see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006).  

During the July 2015 Travel Board hearing, the undersigned advised the Veteran of what is needed to substantiate the claims (evidence of worsening of the disabilities); his testimony reflects that he is aware of what is needed.  A hearing notice deficiency is not alleged.  Following the hearing the case was remanded to assist the Veteran in securing evidence to substantiate his claims.

The Veteran's pertinent postservice treatment records have been secured.  The AOJ arranged for VA examinations in February 2011, February 2013, May 2014, and July 2016.  The reports of these examinations (cumulatively) provide the information needed to properly evaluate the  disabilities at issue, and they are (cumulatively) adequate for rating purposes.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).  The Veteran has not identified any evidence that remains outstanding.  VA's duty to assist is met.  

Legal Criteria, Factual Background, and Analysis

The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail every piece of evidence.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Hence, the Board will summarize the relevant evidence as deemed appropriate, and the Board's analysis will focus on what the evidence shows, or fails to show, as to the claims.

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.

With the initial rating assigned following a grant of service connection, separate (staged) ratings may be assigned for separate periods of time, based on the facts found.  Fenderson v. West, 12 Vet. App. 119, 126 (1999).  

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.  Reasonable doubt as to the degree of disability will be resolved in the veteran's favor.  38 C.F.R. § 4.3.

PTSD with unspecified depressive disorder

PTSD is rated under the General Rating Formula for Mental Disorders.  A 50 percent rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.  

A 70 percent rating is warranted when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships.  

A 100 percent evaluation is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.  38 C.F.R. § 4.130, Code 9411.  

Use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation.  Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002).  Because "[a]ll non-zero disability levels [in § 4.130] are also associated with objectively-observable symptomatology," and the plain language of this regulation makes it clear that "the veteran's impairment must be 'due to' those symptoms," "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration."  Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). "[I]n the context of a 70[%] rating, § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas."  Id. at 117.  Therefore, although the veteran's symptoms are the "primary consideration" in assigning a disability evaluation under § 4.130, the determination as to whether the veteran is entitled to a 70% disability evaluation "also requires an ultimate factual conclusion as to the veteran's level of impairment in 'most areas.'"  Id. at 118.  

The Board has considered the Veteran's assigned Global Assessment of Functioning (GAF) scores, noted in the record.  Such scores reflect the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness.  Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (DSM).  Scores ranging from 51 to 60 reflect more moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co- workers).  Higher scores reflect lesser levels of disability.   Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job).  Lesser scores reflect increasingly severe levels of mental impairment.  See 38 C.F.R. § 4.130 (2013).  [Per a revision of  regulations, VA has endorsed use of the American Psychiatric Association's DSM-5, which has not incorporated use of GAF scores to assess levels of severity of disability.  As this claim arose when the prior criteria were in effect use of the GAF scores as evidence of the level of disability is not improper.]  

When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remissions.  38 C.F.R. § 4.126(a).  The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination.  Id.  However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation on the basis of social impairment.  38 C.F.R. § 4.126(b).

On September 2008 VA treatment, the diagnoses included adjustment disorder not otherwise specified and depressive disorder not otherwise specified; a GAF score of 55 was assigned.  The Veteran reported that he was sleeping six to seven hours per day with Trazodone.  He reported that work was stressful for him, and he preferred solitude and isolated himself from others, but he denied avoidant behavior.  He was emotionally numb to his surroundings but denied flashbacks or intrusive thoughts about his military experiences.  He was hypervigilant with an exaggerated startle response on occasion.  He denied suicidal ideations or audiovisual hallucinations; he endorsed having fleeting homicidal ideation at work but was able to control and push the thoughts out of his mind.  On mental status examination, his mood was dysphoric and anxious with congruent affect.  His speech was clear, concise and goal-directed.  His thoughts and responses were appropriate and his cognition and memory appeared intact.  His judgment and insight were good.

On October 2009 VA treatment, the diagnoses included PTSD related to Iraq and depressive disorder not otherwise specified; a GAF score of 55 was assigned.  The Veteran denied any nightmares unless he forgot to take his Mirtazepine, which was working well.  He reported that he continued to experience PTSD symptoms; he had to leave halfway through a college football game the previous week due to irritability and anxiety over the crowd.  He related that he preferred solitude and was emotionally detached from his surroundings.  He denied flashbacks but experienced intrusive thoughts about Iraq.  He was avoidant and hypervigilant with an exaggerated startle response.  He denied suicidal or homicidal ideation or audiovisual hallucinations.  On mental status examination, his mood was quiet and euthymic with congruent affect.  His speech was clear, concise and goal-directed.  His thoughts and responses were appropriate, and his cognition and memory appeared intact.  His judgment and insight were good.

On February 2011 VA examination, the Veteran reported that he received VA mental health treatment about every four months and was on medication; he took aripiprazole and bupropion for his PTSD symptoms.  He reported thinking about Iraq frequently; when driving, he was very careful if he saw anything on the road, and he would drive to the other side if he saw anything because it reminded him of roadside bombs.  He reported having nightmares nightly, with repeated dreams about an attack and recovering a body; having problems falling asleep and staying asleep, and that he slept about three hours daily; that he worked night shifts and had difficulty sleeping during the day; and that he woke up anxious and nervous, and his wife reported that she had to be careful awaking him.  He reported feeling anxious if he watched anything related to war (but liked watching the military channel) and that he was hypervigilant to loud noises and having anxiety and panic attacks around people; he preferred to be by himself and hated to be around people.  He reported getting depressed with decreased energy; his mood varied; he got irritable and angry at home as well as when he was out, and had road rage.  He was not suicidal or homicidal.  On days off he tried to catch up on sleep and stayed home.

On mental status examination, the Veteran's speech and language were normal and his thought processes were coherent.  His thought content contained no delusions or audiovisual hallucinations, but at times he heard things or saw shadows when nothing was there.  He reported having anxiety, and his mood varied.  His recent and remote memory was intact.  His insight and judgment were intact.  The diagnosis was PTSD; a GAF score of 60 was assigned; the examiner opined that the Veteran's symptoms were mild to moderate.

In June 2011, the Veteran was hospitalized for four days for suicidal ideations.

On July 2012 VA treatment, the diagnoses were PTSD and depressive disorder not otherwise specified; a GAF score of 45 was assigned.  The Veteran reported irritability and quick temper, and his daughter could not tell any significant decrease in his moodiness or temper with a change in medication.  He reported that he was not sleeping well, on average three to five hours per night, and his sleep remained fragmented and with nightmares.  His energy and motivation were fair.  He reported that he prefers solitude and that he isolates, and that he dislikes crowds and tries to avoid them as much as possible.  He reported flashbacks and intrusive thoughts about Iraq, and was emotionally detached, withdrawn, and numb to surroundings.  He was avoidant and hypervigilant with an exaggerated startle response.  He denied suicidal or homicidal ideation or audiovisual hallucinations.  On mental status examination, his mood was euthymic with congruent affect.  His speech was clear, concise and goal-directed.  His thoughts and responses were appropriate, and his judgment and insight were fair.  Cognition and memory appeared intact.

On May 2014 VA examination, the diagnoses were PTSD and depressive disorder not otherwise specified.  The Veteran reported that he continued to think and dream about his service in Iraq.  He avoided crowds and would get hypervigilant with loud sounds or if someone comes near him when he is sleeping.  He liked his job as a truck driver although traffic made him nervous, and he had to stop until it would clear.  He reported having secondary depression but denied active suicidal thoughts.  He took Prozac to help his mood.  He had sleep problems and reported that the medication temazepam did not help.  He reported some short term memory problems.  He got irritable at times and had occasional panic attacks.  He was under VA treatment and was prescribed fluoxetine and temazepam.  He was hospitalized two years earlier for his psychiatric issues.  He reported PTSD symptoms including depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss such as forgetting names, directions or recent events, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships.  He reported that he was on the road for four to six weeks at a time and had been drinking more than before; he did not think that was a problem but reported that his medications were not helping him as much.  He reported having problems and arguments with his boss about being sent to the northeast, where there is more traffic, which he cannot handle.  

On mental status examination, the Veteran was well oriented, with no delusions or hallucinations, no suicidal or homicidal thoughts, no audiovisual hallucinations, and no paranoid delusions.  He was interactive and showed intact memory, insight and judgment.  The examiner opined that the Veteran's disability causes occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation.  The examiner opined that this impairment was 70 percent due to PTSD and 30 percent due to depressive disorder.  The examiner opined that the Veteran's symptoms had comparatively increased, and the current symptom severity was moderate.  The examiner opined that the Veteran's functional impairment was moderate affecting him moderately with physical and sedentary employment; he presently worked as a truck driver and liked the job because he is alone but he had problems with traffic in big cities.  The examiner opined that the symptoms affect him moderately but do not preclude substantial gainful employment.

At the July 2015 Board hearing, the Veteran testified that in 2011 he was hospitalized for suicidal ideation and that in November 2012 he was jailed for assault.  He testified that he works full time as an interstate truck driver and has to interact with people at least twice a day (when loading and unloading).  He testified that he does not like to interact with his boss who "pushes buttons"; they have had a lot of shouting matches.  He testified that if he is sent to an area with a lot of traffic, he shuts down, gets nervous, and feels like everybody is staring at him.  He testified that he often has to pull over while driving to calm down, which causes him to be late most days.  He testified that he sometimes has to stop himself from grabbing hold of his daughter if she startles or wakes him.  He testified that he has suicidal thoughts daily and has anxiety or depression all the time.  He testified that he tries to distance himself from situations in which he would lose his temper and get violent, and he tries to control himself.  He testified that at the time of the May 2014 VA examination, he was taking Prozac which kept him calm but also made him feel like a zombie and caused him to gain weight, so he stopped taking it.  He no longer took  medication because side effects of the medications he had tried outweighed their benefits, and any stronger medications would impact his job as a trucker; he had not received VA mental health treatment since 2014.  

On July 2016 VA examination, Veteran reported that he had recently married for the fourth time, and that there were no fights between them.  He reported that he talks to two of his five siblings.  He had been working as a truck driver for the past 17 years, working 70 hours a week and being home over the weekend; he did not miss work.  He reported that he was not under any mental health treatment, and did not want any treatment.  He could not talk about his war stressors and the medications he took in the past, including Zoloft, Depakote, Geodon, and Prozac, made him worse.  He went to the hospital once when he had suicidal thoughts and increased nightmares (when he was going through a divorce in 2011); he was admitted for one night and discharged upon feeling better the next day.  He reported symptoms including depressed mood, anxiety, chronic sleep impairment, mild memory loss (such as forgetting names, directions or recent events), flattened affect, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships.  He had daily intrusive thoughts about the past, and dreams relating to the past nearly every night that were sometimes violent.  He slept about 4 to 5 hours per night.  He reported having panic attacks in traffic a couple of times a week or more, as well as anxiety and irritability issues.  He reported having low motivation and no friends or outside social activities. 

On mental status examination, the Veteran was well oriented.  His mood was dysthymic and affect was restricted.  He had difficulty talking about the past.  He reported no active suicidal or homicidal thoughts, delusions or hallucinations.  His cognition was intact, and he showed age-appropriate memory, insight and judgement.  The diagnoses included PTSD and unspecified depressive disorder (previously depressive disorder, not otherwise specified) which relates to problems with mood and energy.  The examiner opined that the Veteran's psychiatric disability results in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation.  Regarding which portion of the indicated level of occupational and social impairment is attributable to each diagnosis, the examiner opined that it is about two-thirds due to PTSD and one-third due to unspecified depressive disorder.  The examiner noted that the Veteran reported getting along well with his wife, and did not report any major problems with work other than feeling anxious or agitated with some panic attack feelings if he was in traffic.  The examiner opined that the Veteran's job and his marriage are his support systems.  The examiner opined that the current level of severity of the condition is moderate to severe, that there are issues with thinking and mood relating to depression, anxiety, panic attacks, and difficulty with effective relationships with others.  The examiner opined that the Veteran has been able to adapt to his present work as he is by himself but he can have difficulty with other type of work.  The examiner opined that his abstract thinking, judgement, speech and language are intact, and his family and social relationships are affected other than the relationship with his wife and couple of his siblings.  The examiner noted that there were no confusion, disorientation, major memory problems, hallucinations, delusions or psychosis, obsessional rituals or major anger issues or blowups other than irritability issues, neglect of personal hygiene, impaired impulse control, or acting up of any suicidal or homicidal behaviors.  

Additional VA treatment records reflect symptomatology largely similar to that shown on the examinations described above.  

The Board finds that, throughout the appeal period, the Veteran's PTSD with unspecified depressive disorder has resulted in some deficiencies in his social and personal life, and that his disability picture more nearly approximated occupational and social impairment with reduced reliability and productivity, contemplated by a 50 percent rating, rather than the deficiencies in most areas required for a 70 percent rating.  For example, on February 2011 VA examination, he reported having nightmares, sleep impairment, anxiety, and panic attacks but not suicidal ideations, and his thought process and content were unremarkable, with no signs of distorted thoughts or perceptions, and his judgment and insight were intact; the examiner opined that the Veteran's PTSD symptoms were mild to moderate.  On May 2014 VA examination, the examiner opined that the disability resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation, and that the severity of symptoms was moderate.  On July 2016 VA examination, the Veteran reported that he had recently married and had no fights or arguments with his wife, he speaks to two of his siblings, he works 70 hours a week as a truck driver with no major problems other than feeling anxious or agitated with some panic attack feelings if he is in traffic, and he is not under any mental health treatment or medication; his cognition was intact, and he showed age-appropriate memory, insight and judgement.  The examiner opined that the Veteran's psychiatric disability results in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation.  The examiner opined that the Veteran's current level of severity of the condition is moderate to severe, and that there are issues with thinking and mood, but his abstract thinking, judgement, speech and language are intact, and his family and social relationships are affected other than the relationship with his wife and couple of his siblings.  

The Veteran has not displayed symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships, or any other symptoms of similar gravity.  In short, the Board finds that the evidence reflects no greater impairment than that contemplated by the 50 percent rating currently assigned.  

The next higher, 70 percent, rating requires occupational and social impairment with deficiencies in most areas.  Here, the frequency, duration, and severity of the Veteran's symptoms simply do not reflect deficiencies in most areas at any time.  Throughout the evaluation period the Veteran has been able to maintain employment, has maintained successful relationships with his wife, a child, and two siblings , he reported no major problems with work (other than when placed in stressful situations), and his judgment has (for the most part) remained intact.  The treatment records and examination reports consistently show appropriate thought processes and communication.  While the observations by the VA examiners suggest that he has increased withdrawal, such impairment is encompassed by the criteria for the current 50 percent rating.  The evidence as a whole more nearly approximates that the frequency, severity, and duration of his symptoms have caused him to have reduced reliability and productivity, which is reflective of the criteria for the assigned 50 percent rating.  The disability picture presented is not one consistent with the criteria for a 70 percent rating; deficiencies in most areas are not shown, and consequently, such rating is not warranted.  

The GAF scores assigned have generally not been inconsistent with the schedular rating currently assigned (the one score of 45 on July 2012 VA examination being an anomaly), and do not provide of themselves a separate basis for an increased the rating.  

The Board has considered whether any staged ratings are appropriate.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (in an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged ratings").  The Veteran's symptoms throughout have been consistent with the 50 percent rating assigned; the single score of 45 in July 2012 is unexplained, and the symptoms noted then do not reflect a distinct period when deficiencies in most areas were shown (the Veteran was not shown to have been no longer employed and apparently maintained familial relations with a daughter).  Accordingly a staged increased rating based on that score is not warranted.  The record does not indicate any significant increase or decrease in the Veteran's symptoms not already accounted for by the rating assigned  Therefore, a rating in excess of 50 percent for PTSD with unspecified depressive disorder is not warranted.

IBS

The Veteran's service-connected IBS is rated under Code 7319 for irritable colon syndrome.  Under Code 7319, a 0 percent rating is warranted for mild irritable colon syndrome with disturbances of bowel function with occasional episodes of abdominal distress.  A 10 percent rating is warranted for moderate irritable colon syndrome with frequent episodes of bowel disturbances with abdominal distress.  A (maximum) 30 percent rating is warranted for severe irritable colon syndrome with diarrhea or alternating diarrhea and constipation, with more or less constant abdominal distress.  38 C.F.R. § 4.114, Code 7319.  Code 7319 specifically allows only a maximum 30 percent rating unless there are exceptional or unusual circumstances to warrant referring the case for extra-schedular consideration.  38 C.F.R. § 3.321.

On February 2013 VA examination, the Veteran reported having 4 to 5 soft bowel movements daily, with no bleeding in the stool; he reported the stools occurred a few minutes after eating.  He denied abdominal distress or distention and reported that the only symptom was the frequent soft stools daily.  He took psyllium powder twice daily for the IBS.  He had no surgical treatment for the intestinal condition.  He reported no episodes of bowel disturbance with abdominal distress, or exacerbations or attacks of the condition.  He did not have weight loss, malnutrition, serious complications, or other general health effects attributable to the condition.  It was noted that a colonoscopy in July 2012 showed normal bowel with suspected IBs; biopsies taken were normal.  The examiner opined that the condition does not impact the Veteran's ability to work.

On May 2014 VA examination, the Veteran reported having about 2 to 3 diarrhea stools per day that occurred after eating.  He took over-the-counter Metamucil fiber powder as directed.  He had no surgical treatment for an intestinal condition.  He reported no episodes of bowel disturbance with abdominal distress, or exacerbations or attacks of the condition.  He reported no weight loss, malnutrition, serious complications or other general health effects attributable to the condition.  The examiner opined that irritable bowel syndrome, although bothersome, would not make physical or sedentary labor impossible; the Veteran's lab work and weight did not indicate malnutrition; and the condition would not limit physical labor jobs or sedentary labor jobs.

At the July 2015 Board hearing, the Veteran testified that he has bowel disturbance shortly after he eats anything, and he frequently has cramping after eating as well.  He testified that he did not take medications for IBS; he sought VA treatment one time in 2013 and was given Metamucil but it only made his symptoms worse.

On December 2015 VA treatment, the Veteran reported his bowels were moving well and there were no bowel changes.

On July 14, 2016 VA examination, the Veteran reported taking Metamucil fiber powder as needed.  He had no surgical treatment for an intestinal condition.  He reported a frequency of diarrhea 3 to 4 times in a month and lasting for a couple of days, and stool frequency 4 to 5 times per day with stool consistency liquid to semi-solid.  He reported increased frequency of diarrhea after eating.  He reported alternating diarrhea with constipation, with the constipation lasting for 2 to 4 days.  He reported abdominal discomfort and distention that relieved with defecation.  He reported having frequent episodes of bowel disturbance with abdominal distress.  He did not report weight loss, malnutrition, serious complications or other general health effects attributable to IBS.  The examiner opined that the Veteran's IBS does not impact his ability to work.

Based on this evidence, a March 2017 rating decision granted a 30 percent rating for IBS, effective July 14, 2016, the date of the VA examination.

The evidence outlined above shows that prior to July 14, 2016 symptoms of the Veteran's IBS most closely approximated the criteria for a 0 percent rating under Code 7319.  Although he reported problems with constipation and diarrhea on each VA examination, it is not shown that he experienced frequent episodes of abdominal distress with such problems.   The absence of abdominal distress, or exacerbations or attacks of the condition, was specifically noted during the February 2013 and May 2014 VA examinations; notably, he did not report frequent episodes, or more or less constant abdominal distress.  On December 2015 VA treatment, he reported his bowels were moving well and there were no bowel changes.  The Board finds that the preponderance of the evidence (including the Veteran's self-reports of symptoms and impairment) is against a finding of moderate irritable bowel syndrome with frequent episodes of abdominal distress prior to July 14, 2016, and that a compensable rating prior to that date is not warranted..

While the assignment of the maximum schedular rating for IBS from July 14 2016 raises a question of whether referral of the claim for increase to the Director of Compensation for consideration of an extraschedular rating is warranted, the Board's review of the evidence of record in the matter found that referral is not necessary.  There is no evident showing or allegation of symptoms or functional impairment not encompassed by the schedular criteria.  VA examiners have opined that the Veteran is not unable to work due to his service-connected IBS, and the symptoms the Veteran has reported (such as loose bowel movements following meals) are all encompassed by the schedular criteria.  For these reasons, referral for extraschedular consideration is not warranted.  

The preponderance of the evidence is against the assignment of ratings for IBS in excess of 0 percent prior to July 14, 2016 and in excess of 30 percent from that date, and the appeal in the matter must be denied. 


ORDER

A rating in excess of 50 percent for PTSD with unspecified depressive disorder is denied.

Ratings for IBS in excess of 0 percent prior to July 14, 2016 and in excess of 30 percent from that date are denied.


____________________________________________
George R. Senyk
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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