Citation Nr: 1317271 Decision Date: 05/28/13 Archive Date: 06/06/13 DOCKET NO. 09-33 988 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for irritable bowel syndrome with chronic constipation. 2. Entitlement to an initial rating in excess of 10 percent for degenerative changes of the cervical spine. 3. Entitlement to service connection for a fainting condition. ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Veteran had active military service from November 2006 to September 2008. This appeal comes to the Board of Veterans' Appeals (Board) from a February, 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Fainting Condition The Veteran's service treatment records reflect she reported fainting in June and August 2008. She also reported two fainting episodes on her September 2008 separation examination. Records also reflect a complaint of syncope during bowel movements in July 2008. In a March 2009 statement the Veteran stated that she was told by a doctor that her fainting was due to stress brought on by being discharged from service. In an August 2009 statement she attributed her fainting to stress from having her security clearance revoked in service. She stated that she had experienced several episodes of fainting since her September 2008 discharge. The Veteran underwent a VA examination in January 2009. The examiner did not review her file or medical records or offer an opinion on service connection. The Veteran reported to the examiner that she began fainting when she lost her security clearance and was experiencing personal stress in service. She stated that she fainted twice in service and once since discharge when she was thinking about not having a job since she left service. She reported a work-up was negative and she had been told it was a vasovagal reaction. At VA appointments in February, April, and June 2009 the Veteran reported she experienced periodic episodes of syncope during bowel movements. At her April 2009 appointment she reported syncopal episodes once a year and said they are preceded sometimes hours before they occur by lightheadedness. She was assessed with vasovagal syncope, probably of autonomic/vascular origin. No neurological abnormality was found on examination. The Veteran was scheduled for another VA examination in May 2009. The exam was canceled with the reason noted as "vet refused exam this location." In an August 2009 statement of the case, the RO concluded that the Veteran failed to appear for the examination without good cause. However, in an August 2009 statement the Veteran contended that she had called the VA clinic to report that she was extremely sick and could not attend the exam. The record does not reflect any additional examination was scheduled with regard to the Veteran's claim for service connection for a fainting disorder. When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim without good cause, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655(b). The United States Court of Veterans Affairs (Court) has held that the burden was upon VA to demonstrate that notice was sent to the claimant's last address of record and that the claimant lacked adequate reason or good cause for failing to report for a scheduled examination. Hyson v. Brown, 5 Vet. App. 262, 265 (1993). The Board finds that the VA has not demonstrated that the Veteran lacked good cause for failing to appear for the examination as she has asserted she canceled the appointment due to illness. Notably, the Veteran faithfully attended multiple VA treatment appointments in the months both prior to and after May 2009 when her VA examination was scheduled. The Board finds her explanation for missing the scheduled examination to be credible and to constitute good cause. Further, the Board finds a VA examination is warranted in this case as the Veteran's service treatment records reflect a episodes of fainting in service and her post-service VA treatment records also include complaints of episodes of syncope and an assessment of vasovagal syncope. Therefore, the Board finds a remand is necessary to schedule the Veteran for an examination to determine whether the Veteran's fainting is related to her service. Irritable Bowel Syndrome and Cervical Spine Disability In February 2009, the RO granted service connection and awarded an evaluation of 10 percent effective September 30, 2008 for both irritable bowel syndrome with chronic constipation and degenerative changes of the cervical spine. The Veteran is seeking a higher initial rating for each. She was afforded a VA examination in January 2009. With regard to her irritable bowel syndrome, the examiner stated that the Veteran described experiencing chronic constipation with a bowel movement only once a week, abdominal distention, and abdominal pain daily. She reported feeling uncomfortable and bloated most of the time and almost fainting when she does have a bowel movement. He noted she had been diagnosed with irritable bowel syndrome. In a March 2009 statement, the Veteran said she has daily abdominal pain. She said she only has a bowel movement once a week and 90 percent of the time it is diarrhea. In April 2009 she complained at a VA appointment of difficulty moving her bowels. She reported constipation, diarrhea, bloating, and abdominal distention with pain. In June 2009 a VA doctor prescribed her a trial of Miralax. An August 2009 VA treatment record noted that her irritable bowel syndrome was currently in remission and would be treated symptomatically. With regard to the Veteran's neck disability, the January 2009 examiner found the Veteran had extension backwards to 45 degrees with pain at 45 degrees and no change after repetitive motion; forward flexion to 45 degrees with pain at 45 degrees and no change after repetitive motion; lateral flexion to the right and left to 30 degrees with pain at 45 degrees and no change after repetitive motion; and rotation to the right and left to 80 degrees with pain at 80 degrees and no change after repetitive motion. In a March 2009 statement the Veteran said that her neck disability prevents her from physical activities including running and doing sit-ups and activities including driving and typing cause pain and numbness. In an August 2011 statement the Veteran said sitting at a desk for a long period of time causes her fingers to go numb and have shooting pains in her neck due to the herniated discs in her back. The Veteran was scheduled for a VA examination regarding both her IBS and neck disability in October 2011, but the record reflects that the exam was canceled with the reason noted as "vet refused exam this location." The RO spoke with the Veteran's mother October 13 and 14, 2011 and she reported the Veteran was in Italy in school. In January 2013, the Veteran's mother provided the Veteran's address in Italy. The Board finds that the fact that the Veteran was overseas at the time of the scheduled VA examinations constitutes good cause for missing the examinations and the examinations should be rescheduled to obtain a contemporaneous exam as to the current severity of her disabilities. The Board reminds the Veteran that the duty to assist the Veteran in the development of evidence pertinent to her claim is not a "one-way street." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). She is encouraged to communicate with the VA to schedule the ordered examinations and work with the VAMC to make sure these examinations are undertaken. If the Veteran cannot attend a VA examination (because she is in Italy, or for any other reason), she should inform the RO immediately so the case can be returned to the Board for a final adjudication based on the available evidence (including any medical evidence the Veteran herself wishes to submit). Accordingly, the case is REMANDED for the following action: 1. Obtain any additional VA treatment records from the Martinsburg VA Medical Center since February 2011 and any private treatment records identified by the Veteran. 2. After any additional records are associated with the claims file, schedule the Veteran for an examination to determine the nature and etiology of her reported fainting problems. The entire claims file must be reviewed by the examiner in conjunction with the examination. Any indicated studies are to be performed. The examiner is to opine as to whether the Veteran has an identifiable chronic disability (as least as likely as not) manifested by recurrent episodes of syncope, and if so, what is the most likely diagnosis? The examiner is to further specifically indicate whether the reported fainting problems are a symptom of a diagnosed disability, to include adjustment disorder with anxiety. If the Veteran's fainting is attributed to a known clinical diagnosis, the examiner is to provide an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent or greater) that any current fainting disorder had its onset during active service or is related to any in-service disease, event, or injury. The examiner must provide a comprehensive report including complete rationales for all conclusions reached. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate VA examination in order to determine the current severity of her cervical spine disability. The claims file must be made available to and reviewed by the examiner prior and pursuant to conduction and completion of the examination. All indicated tests and studies should be performed. All findings and diagnoses should be reported in detail. The rationale for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and a rationale provided for that conclusion. The examiner should be requested to report the range of motion of the cervical spine in degrees. If the Veteran demonstrates limitation of motion, the examiner should be requested to specifically comment upon the extent, if any, to which pain, supported by adequate pathology and evidenced by the visible behavior of the Veteran, results in functional loss. The examiner should carefully elicit all of the Veteran's subjective complaints concerning the cervical spine and offer an opinion as to whether there is adequate objective pathology present to support the Veteran's subjective complaints. To the extent possible, the examiner should assess the extent of any pain and describe the extent of any incoordination, weakened movement, and excess fatigability on use. The examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups (if the veteran describes flare-ups), and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. The existence of any ankylosis of the spine should also be identified. The examiner should also assess if the Veteran has any neurological manifestations, specifically radiculopathy, to include with regard to the shoulders, arms, hands, and down the back. If so, these neurological manifestations should be identified and the severity thereof described in detail. 4. After any additional records are associated with the claims file, schedule the Veteran for a VA examination to determine the current level of severity of her irritable bowel syndrome. The Veteran's claims file and a copy of this remand must be provided to the examiner for review prior to the scheduled examination. The examiner is asked to perform all indicated tests and studies, and describe in detail all symptomatology associated with this disability. A complete rationale must be provided for all opinions offered, and the Veteran's lay statements regarding his symptomatology must be considered and discussed. 5. Upon completion of the above, readjudicate the issue on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, as appropriate. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).