12-34 898
12-34 898
Board of Vet. App.Jun 30, 2017Background
- Veteran served active duty July 1984–October 1986 and appealed an August 2010 RO rating decision seeking >30% for service‑connected Crohn’s disease.
- VA obtained private and VA treatment records and provided VA examinations in August 2010 and January 2017; Board found development complete.
- Record documents frequent exacerbations with abdominal pain, bloating, flatulence, diarrhea, intermittent blood, and enterocolic fistulae diagnosed by imaging in 2016, but no sustained weight loss or malnutrition.
- Treatment largely controlled with mesalamine/azathioprine; periodic flares treated with antibiotics/biologics; records repeatedly note stable weight and no overall decline in health during remissions.
- Veteran testified to work interruptions (appointments, bathroom urgency) but did not assert inability to maintain substantially gainful employment (no TDIU claim raised).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to rating >30% for Crohn's disease | Veteran: symptoms (frequent exacerbations, fistulae, urgency, missed work) warrant higher rating | VA/Board: objective evidence does not show malnutrition, fair health in remissions, or complications required for higher schedular ratings | Denied — 30% retained (symptoms fit 30% criteria; not 60% or 100%) |
| TDIU reasonably raised | Veteran testified to missed work/time off | VA: testimony does not show inability to secure/follow substantially gainful employment | Not raised — no TDIU adjudication; veteran may file separately |
| Entitlement to separate rating for surgical scar | Veteran has an 18 cm scar | VA: scar not painful, unstable, or large/deep enough for compensable scar code | Denied — no separate compensable scar rating |
| Alternative diagnostic codes (e.g., malabsorption, resection codes) | Veteran: complications/fistulae may fit other codes | VA: no objective evidence of impaired absorption, nutrition, copious discharge, colostomy, or severe symptoms required by other DCs | Denied — other DCs not met |
Key Cases Cited
- Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) (notice requirements under 38 U.S.C. § 5103)
- Barr v. Nicholson, 21 Vet. App. 303 (2007) (standards for adequacy of VA medical examinations)
- Smith v. Gober, 14 Vet. App. 227 (2000) (duty to assist and when development is adequate)
- Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (duty to assist; obtaining records)
- Layno v. Brown, 6 Vet. App. 465 (1994) (competency of lay testimony for observable symptoms)
- Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (benefit of the doubt rule for VA claims)
- Rice v. Shinseki, 22 Vet. App. 447 (2009) (TDIU can be raised as part of an increased-rating claim)
- Doucette v. Shulkin, 28 Vet. App. 366 (2017) (Board need only address issues raised by claimant or reasonably raised by record)