Citation Nr: 1813052 Decision Date: 03/01/18 Archive Date: 03/13/18 DOCKET NO. 95-00 078A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona THE ISSUE Entitlement to an initial (compensable) rating prior to August 14, 2014, and a rating in excess of 10 percent from that date, for service-connected inflammatory bowel disease, variously diagnosed as ulcerative colitis and Crohn's disease. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney ATTORNEY FOR THE BOARD Michael Sanford, Counsel INTRODUCTION The Veteran served on active duty for training (ACDUTRA) from October 11, 1998, to March 22, 1989, from July 8, 1989, to July 21, 1989, and from July 7, 1990, to July 21, 1990. This appeal to the Board of Veterans' Appeals (Board) arose from a July 2015 rating decision in which the RO implemented the Board's May 2015 grant of service connection for inflammatory bowel disease, variously diagnosed as ulcerative colitis and Crohn's disease, and assigned an initial 0 percent (noncompensable) rating, effective July 28, 1993. In December 2015, the Veteran filed a notice of disagreement (NOD) with the initial rating assigned. A statement of the case (SOC) was issued in July 2016 and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in September 2016. Because the Veteran has disagreed with the initial rating assigned following the award of service connection for inflammatory bowel disease, the Board characterized this claim in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). In a July 2016 rating decision, the Veteran was assigned a higher, 10 percent rating for inflammatory bowel disease, effective August 14, 2014,. However, inasmuch as higher ratings are available before and after that date, and the Veteran is presumed to seek the maximum available benefit for a disability, a claim now seeking a higher rating at each stage remains viable on appeal. Id; AB v. Brown, 6 Vet. App. 35, 38 (1993). While the Veteran previously had a paper claims file, this appeal is now being processed utilizing the paperless, electronic Veterans Benefits Management System and Virtual VA (Legacy Content Manager) claims processing systems. All records have been reviewed. For reasons expressed below, this matter is being remanded to the agency of original jurisdiction (AOJ). VA will notify the Veteran when further action, on his part, is required. REMAND The Board's review of the claims file reveals that further AOJ action in this appeal is warranted. The Veteran was last afforded a VA examination to obtain information to assess the severity of his service-connected disability in May 2016. The examiner noted ulcerative colitis and discussed the symptoms related to that disability. Notably, the Veteran's representative argues that remand is required for a VA examiner to consider all components of the Veteran's service-connected disability, to include ulcerative colitis and Crohn's disease. See January 2018 Brief. The representative argues that no VA examination report is sufficiently comprehensive to rate the totality of the Veteran's symptoms related to his service-connected disability. See id. Finally, the representative pointed out that the evidence (generated following the May 2016 VA examination) indicates that the Veteran requires the use of pads for urine and stool leakage. Given that new evidence, the representative further requested an opinion as to whether the service-connected disability warrants a rating under Diagnostic Code (DC) 7332, pertaining to impairment of sphincter control. The Veteran's service-connected disability is rated under DC 7319. Under DC 7319, severe irritable colon syndrome, with diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress, warrants a 30 percent rating. Moderate irritable colon syndrome, with frequent episodes of bowel disturbance with abdominal distress, warrants a 10 percent rating. Mild irritable colon syndrome, with disturbances of bowel function with occasional episodes of abdominal distress, warrants a noncompensable (0 percent) rating. 38 C.F.R. § 4.114, DC 7319. Under DC 7332, for rectum and anus, impairment of sphincter control, a noncompensable rating is assigned for healed rectum and anus or slight impairment of sphincter control without leakage. A 10 percent rating is assigned for constant slight impairment of sphincter control or occasional moderate leakage. A 30 percent rating is assigned for occasional involuntary bowel movements or impairment of sphincter control necessitating the wearing of a pad. A 60 percent rating is warranted for extensive leakage and fairly frequent involuntary bowel movements. A 100 percent rating is warranted for complete loss of sphincter control. 38 C.F.R. § 4.114, DC 7332. In light of the above, the Board finds that a new VA examination addressing the totality of the symptoms of the Veteran's service-connected disabilities is warranted. Indeed, the last VA examination report only discussed ulcerative colitis, but not Crohn's disease. Notably, the Veteran's service-connected disability includes both ulcerative colitis and Crohn's disease. Further, in light of the post-examination evidence that the Veteran reported leaking stool and urine, a contemporaneous examination addressing whether the Veteran's service-connected disability causes sphincter impairment. As such, a new VA examination is necessary-one that considers the entirety of the symptomatology related to the Veteran's service-connected disability, to include whether the service-connected disability causes sphincter impairment such that a separate rating under DC 7332 is warranted. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide a veteran with a thorough and contemporaneous medical examination). The Veteran is hereby notified that failure to report to the scheduled examination, without good cause, may result in denial of the claim. See 38 C.F.R. § 3.655 (2017). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Id. Prior to taking action responsive to the above, to ensure that all due process requirements are met, and the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. The AOJ should give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claim on appeal (particularly as regards any private (non-VA) evaluation, testing, or treatment), explaining that he has a full one-year period for response. See 38 U.S.C. § 5103(b)(1) (2012); but see also 38 U.S.C. § 5103(b)(3) (clarifying that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2017). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. Adjudication of the higher rating claim should include consideration of whether any, or any further, "staged rating" of the disability-assignment of different ratings for distinct periods of time, based on the facts found-is appropriate. Accordingly, this matter is hereby REMANDED for the following action: 1. Furnish to the Veteran and his representative a letter requesting that the Veteran provide information and, if necessary, authorization, to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding pertinent private (non-VA) records of evaluation, testing or treatment for hearing loss. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the matter within the one-year period). 2. If the Veteran responds, obtain all identified records, following the procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the file. If any records sought are not obtained, notify the appellant and her representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records and/or responses received from each contacted entity have been associated with the file, arrange for the Veteran to undergo VA examination, by an appropriate physician, for evaluation of his service-connected inflammatory bowel disease, variously diagnosed as ulcerative colitis and Crohn's disease. The contents of the entire, electronic claims file (in VBMS and Virtual VA (Legacy Content Manager)), to include a complete copy of this REMAND, must be made available to the designated individual, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should identify, and comment on the existence, and frequency or extent of, as appropriate, all manifestations of the Veteran's inflammatory bowel disease (including ulcerative colitis and Crohn's disease). Considering all of the Veteran's symptoms, the examiner should render findings as to whether the Veteran's inflammatory bowel syndrome, variously diagnosed as ulcerative colitis and Crohn's disease, is mild with disturbances of bowel function with occasional episodes of abdominal distress; moderate with frequent episodes of bowel disturbance with abdominal distress; or severe with diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. The examiner should also discuss whether the Veteran suffers from any impairment of sphincter control as a result of his service-connected inflammatory bowel disease, variously diagnosed as ulcerative colitis and Crohn's disease. If so, the examiner should provide an assessment of the severity of such impairment (as healed or slight without leakage; constant slight or occasional moderate leakage; occasional involuntary bowel movements, necessitating wearing of pad; extensive leakage and fairly frequent involuntary bowel movements; or, complete loss of sphincter control). Also, based on the examination results and review of the record, the examiner should also indicate whether there has been any change(s) in severity of the disability since the July 28, 1993 effective date assigned for this disability. If so, the examiner should identify the approximate date of the change(s), and provide an assessment of the severity of the disability on each date. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 4. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claim on appeal in light of all pertinent evidence (to include all evidence added to the VBMS and/or Virtual VA (Legacy Content Manager) file(s) since the last adjudication) and legal authority (to include consideration of whether any, or any further, staged rating is appropriate). 6. Unless the claim is granted to the Veteran's satisfaction, furnish to him and his representative a supplemental SOC that includes clear reasons and bases for all determinations, and afford them an appropriate time period for response. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether any benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims 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. §§ 5109B, 7112 (2012). _________________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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 the appeal. 38 C.F.R. § 20.1100(b) (2017).