10-40 408
10-40 408
| Board of Vet. App. | Aug 31, 2016Background
- Veteran served Mar 2005–Sep 2008 and was service‑connected for ulcerative colitis (initial 10% effective Sep 9, 2008).
- Claim progressed to the Board after RO decisions and an April 2015 Board remand for additional development; RO later increased the rating to 60% effective Sep 26, 2015.
- Medical evidence includes service records, private treatment, and VA exams (Jan 2009, Dec 2013, Sep 2015) showing chronic symptoms: daily diarrhea at times, bloody stools, abdominal cramping, and periodic exacerbations treated with steroids/antibiotics; no consistent evidence of malnutrition, anemia, or serious complications.
- Prior to Sep 26, 2015 the record showed frequent exacerbations and daily symptoms consistent with at least moderately severe ulcerative colitis.
- Since Sep 26, 2015 the Sep 2015 VA exam documented ongoing moderate daily disease with intermittent severe episodes but expressly noted no malnutrition, anemia, or other serious complications required for higher schedular ratings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to initial rating >10% for ulcerative colitis for period prior to Sep 26, 2015 | Veteran argued symptoms/supporting evidence warrant >10% (higher compensable rating) | VA/RO argued evidence fit schedular criteria for higher tier but not above 60% | Board granted 30% (reduced to 30% effective Sep 9, 2008) — evidence supported moderately severe disease with frequent exacerbations but not 60% criteria |
| Entitlement to initial rating >60% for ulcerative colitis for period since Sep 26, 2015 | Veteran sought rating above 60% (up to 100%) based on ongoing exacerbations and severe episodes | RO/Board argued Sep 2015 exam showed moderate disease without malnutrition, anemia, or serious complications required for >60% | Board denied rating in excess of 60% since Sep 26, 2015 — preponderance of evidence did not meet 100% criteria |
Key Cases Cited
- AB v. Brown, 6 Vet. App. 35 (VA appellate jurisdiction/partial grant guidance)
- Barr v. Nicholson, 21 Vet. App. 303 (VA exam adequacy standard)
- Dyment v. West, 13 Vet. App. 141 (substantial compliance with remand instructions)
- Stegall v. West, 11 Vet. App. 268 (remand compliance requirements)
- Gilbert v. Derwinski, 1 Vet. App. 49 (benefit-of-the-doubt rule)
- Thun v. Peake, 22 Vet. App. 111 (extraschedular referral three-step analysis)
- Fenderson v. West, 12 Vet. App. 119 (staging ratings over time)
- Esteban v. Brown, 6 Vet. App. 259 (pyramiding and disability evaluation)
- Floyd v. Brown, 9 Vet. App. 88 (Board's duty to liberally read records for theories of entitlement)