Citation Nr: 1329616 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 09-15 910 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Entitlement to an initial rating in excess of 10 percent for service-connected irritable bowel syndrome, claimed as colitis. REPRESENTATION Appellant represented by: Kathy A. Lieberman, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The National Personnel Records Center has confirmed that the Veteran performed active duty for training (hereinafter: ACDUTRA) from June 28 to October 26, 1968. The Veteran also performed ACDUTRA and/or inactive duty training at other times, the dates or which remain unconfirmed. Because VA has established service connection for disability incurred during ACDUTRA, the duty period from June 28 to October 26, 1968, has become active military service and the appellant has achieved "veteran" status. See 38 C.F.R. §§ 3.1 and 3.6. This case arises to the Board of Veterans' Appeals (Board) from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office and Insurance Center (RO) in Philadelphia, Pennsylvania, that assigned an initial 10 percent rating for irritable bowel syndrome (IBS), described as colitis, and assigned an initial noncompensable rating for hemorrhoids. The appellant appealed for higher initial ratings. In March 2012, the Board denied higher initial ratings for IBS and hemorrhoids. In November 2012, the United States Court of Appeals for Veterans Claims (hereinafter: the Court) vacated and remanded that portion of the Board decision that denied a higher initial rating for IBS. The hemorrhoid rating was not disturbed and will not be discussed further, as it is no longer on appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND As mentioned above, in November 2012 the Court remanded the issue of an initial rating for IBS. The Court instructed that the Board accomplish action consistent with the terms of a Joint Motion for Partial Remand (hereinafter: the Joint Motion). In the Joint Motion, the parties agreed that three actions must be accomplished. First, VA has not attempted to obtain relevant medical records from a Dr. Birenbaum, a private physician for whom the Veteran had executed a VA Form 21- 4142 consent form in November 2004. Therefore, the Board must insure that VA attempts to obtain these records. Second, the Joint Motion, at page 3, instructs the Board to ensure compliance with guidance set forth in a previous December 2008 Joint Motion and an April 2009 Board remand. Upon thorough review of the claims files and Virtual VA, the Board cannot find any evidence of the December 2008 Joint Motion or the April 2009 Board remand referred to in the instant Joint Motion. The Veteran's claims files do contain a March 2008 Board decision; which is entirely favorable to the Veteran and therefore would not have been appealed to the Court. There is no evidence that this Veteran had ever presented an appeal of any Board decision to the Court prior to the Board's March 2012 decision. Third, the parties agreed that the Board's previous discussion of what constitutes "constant abdominal stress" was inadequate. The parties agreed that the Board had failed to fulfill the reasons and bases mandate in denying that the examiner's discussion of the symptoms does not equate to same. Accordingly, the case is REMANDED for the following action: 1. Offer the Veteran and his attorney an opportunity to submit evidence or argument in furtherance of the claim. 2. VA should obtain up-to-date treatment records pertaining to IBS with colitis and associate them with the claims file and/or Virtual VA, as appropriate. 3. An attempt should be made to obtain any relevant clinical records from Dr. Birenbaum, for whom the Veteran executed a VA Form 21-4142 consent form in November 2004. 4. The August 2011 VA IBS compensation examination report must be returned to the examining physician for an addendum. The claims files and any pertinent evidence in Virtual VA that is not in the claims files must be made available to the physician for review. The physician is asked to review the medical history and note that review in the report. The physician is asked to offer an addendum addressing whether it is at least as likely as not (50 percent or greater possibility) that "more or less constant abdominal stress" as set forth at 38 C.F.R. § 4.114, Diagnostic Code 7319, is shown. A rationale must be provided for any opinion offered. The Veteran may be re- examined if necessary. If the requested physician is not available, a qualified substitute may be used. 5. After the development requested above has been completed to the extent possible, the AMC should re-adjudicate the claim. If the benefit sought remains denied, the Veteran and his attorney should be furnished a supplemental statement of the case and given an opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. No action by the Veteran is required until he receives further notice. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). If an examination is scheduled, the Veteran is advised that failure to report for a scheduled VA examination, without good cause, may have adverse consequences on his claim. 38 C.F.R. § 3.655. This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). _________________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).