Citation Nr: 1752461 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 11-00 173 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to an initial rating in excess of 10 percent for irritable bowel syndrome (IBS). 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD W.V. Walker, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1974 to November 1976 and from December 1990 to June 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York, and an April 2013 rating decision by the VA RO in Louisville, Kentucky. The Board notes that in 2015, the Board remanded the matters of entitlement to service connection for perirectal abscesses, headaches, bilateral carpal tunnel syndrome, and a low back disorder; and initial compensable ratings for allergic rhinitis and dermatitis for issuance of a Statement of the Case. Although the RO has yet to issue an SOC, a review of VA's Veterans Appeals Control and Locator System documents that the RO is processing the claims. Therefore, the Board will not address this matter further. The issues of entitlement to service connection for bilateral hearing loss and tinnitus, and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. VA will notify the Veteran if further action is required. FINDINGS OF FACT The Veteran's IBS disability is manifested by intermittent diarrhea and constipation, loose stools two to three times per day, and frequent episodes of bowel disturbance with abdominal distress. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for IBS have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.14, 4.114a, Diagnostic Code 7319 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Applicable Law Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1995). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Pyramiding under different diagnostic codes is to be avoided. 38 C.F.R. § 4.14 (the evaluation of the same disability under various diagnoses is to be avoided). The Court has held that "staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Fenderson v. West, 12 Vet. App 119 (1999). In this case, the disability has not significantly changed and a uniform evaluation is warranted. The Veteran's service-connected IBS has been rated under the provisions of 38 C.F.R. § 4.114, Diagnostic Code (DC) 7319. Under DC 7319, a noncompensable rating is assigned for mild IBS with disturbances of bowel function with occasional episodes of abdominal distress. A 10 percent rating is assigned for moderate IBS with frequent episodes of bowel disturbance with abdominal distress. A maximum 30 percent rating is assigned for severe IBS with diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. Analysis The Veteran contends he is entitled to a higher initial rating for his IBS because the current assigned rating does not adequately represent the severity of his condition. In the Veteran's VA treatment records, there is evidence that he reported experiencing diarrhea and/or constipation due to his IBS in January 2013, September 2014 and December 2015 treatment notes. See February 2016 CAPRI, pp. 8, 45, 137; see also February 2015 VA Treatment Records, p. 6. The Veteran underwent a VA examination in March 2013. See February 2015 VA Treatment Records, p. 15. The Veteran expressed feeling gassy and bloated and reported having loose stools two to three times per day. He reported experiencing frequent episodes of bowel disturbance with abdominal distress, and noted that he had to use the restroom often to relieve himself. The Board finds that there is sufficient evidence to demonstrate a level of disability that more closely approximates the picture contemplated by the 30 percent rating. The Veteran has consistently reported experiencing diarrhea or constipation as a result of his IBS. While the Veteran did not report experiencing constant abdominal distress during the March 2014 VA examination, he stated that he had loose stools two to three times per day and had to use the restroom often for relief. The Board finds that the Veteran's IBS disability is severe. Resolving any reasonable doubt in the Veteran's favor, the Board concludes that the weight of the evidence preponderates in favor of a finding of entitlement to a rating of 30 percent which is the maximum schedular rating for IBS. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER An initial rating of 30 percent, but no higher, for IBS is granted. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2017). The Veteran underwent a VA audiology examination in October 2016. The examiner opined that neither the Veteran's tinnitus nor hearing loss were the result of the Veteran's service and based this opinion on a 1994 audiology examination. However, in addition to the Veteran's active duty Marine Corps service, the Veteran has additional years of service in the Marine Corps Reserve as he retired in 1996. VA has not made any efforts to obtain treatment records from any periods of active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA). Accordingly, on remand, the AOJ should obtain all treatment records from the Veteran's ACDUTRA and INACDUTRA service and associate the same with the claims file. If there are any additional audiology examinations or treatment records pertaining to the Veteran's hearing, an addendum opinion should be obtained that addresses whether the Veteran's hearing loss or tinnitus are related to any injuries sustained during any periods of ACDUTRA or INACDUTRA. The issue of TDIU has been raised by the record in a March 2013 statement by the Veteran. See February 2015 VA Treatment Records, p. 20. On remand, the AOJ should provide the Veteran with an opportunity to supply relevant information in support of his claim of entitlement to TDIU, including complete employment and education history. The Veteran should also be scheduled for a VA examination to determine the collective impact of the Veteran's service-connected disabilities on his ability to work. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a duty-to-assist letter pursuant to 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), which includes an explanation as to what information or evidence is needed to substantiate his TDIU claim, as well as VA Form 21-8940. 2. Contact the appropriate units or agencies to verify the specific dates of the Veteran's active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). If such information is not available, that fact (and the units/agencies contacted) should be noted in the claims file. All records and/or responses received should be associated with the claims file. 3. Contact the appropriate repositories to obtain any medical records that pertain to any periods of ACDUTRA or INACDUTRA. 4. Obtain all updated treatment records, to include any records from the Bronx VA Medical Center from February 2016 to the present, and associate them with the claims file or virtual record. 5. If there is any relevant medical evidence in the Veteran's ACDUTRA and INACDUTRA records that pertains to the Veteran's bilateral hearing loss and tinnitus, return the claims file to the examiner who conducted the October 2016 VA audiological examination to provide an addendum opinion on the etiology of the Veteran's bilateral hearing loss and tinnitus. If this examiner is no longer available, the entire claims file should be made available to an appropriate VA examiner and, if necessary, a new examination should be scheduled. The examiner should offer comments and an opinion addressing whether it is at least as likely as not (50 percent probability or greater) that the Veteran's bilateral hearing loss is related to an INJURY that occurred during, or was aggravated by, ACDUTRA or INACDUTRA. The examiner should also offer comments and an opinion addressing whether it is at least as likely as not (50 percent probability or greater) that the Veteran's tinnitus is related to an INJURY that occurred during, or was aggravated by, ACDUTRA or INACDUTRA. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. A fully supported rationale must be set forth for any opinion provided. 6. The Veteran should be scheduled for a VA examination with an appropriate examiner to ascertain the collective impact of the Veteran's service-connected disabilities (PTSD, right shoulder arthritis, left hip degerative joint disease, left knee degenerative arthritis, right ankle arthritis, left ankle arthritis, IBS, allergic rhinitis and dermatitis) on his ability to work. If appropriate, any studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The examiner should elicit and set forth the pertinent facts regarding the Veteran's medical, education and employment history; day-to-day functioning; and, industrial capacity. The examiner should address the Veteran's current ability to function in an occupational environment. If the Veteran is felt to be capable of work despite the service-connected disabilities, the examiner should indicate what type of work the Veteran is capable of as well as any accommodations that would be necessary due to service-connected disabilities. 7. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraph, the Veteran's claim should be readjudicated. If the claim is not granted in full, the Veteran and his representative must be provided a supplemental statement of the case. An appropriate period of time must be allowed for response. Thereafter, if indicated, the case must be returned to the Board for an appellate decision. The Veteran 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 2014). ______________________________________________ A. S. CARACCIOLO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs