Citation Nr: 20072844 Decision Date: 11/12/20 Archive Date: 11/12/20 DOCKET NO. 13-22 717 DATE: November 12, 2020 REMANDED Entitlement to a disability rating in excess of 50 percent for posttraumatic stress disorder (hereinafter "PTSD") is remanded. Entitlement to a disability rating in excess of 30 percent for irritable bowel syndrome (hereinafter "IBS") is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1969 to March 1971. This matter comes to the Board of Veterans’ Appeals (Board) from a September 2011 rating decision which, in pertinent part, increased a disability rating of 30 percent to 50 percent for PTSD, and continued a disability rating of 10 percent for IBS. Regarding the claim of an increased rating for PTSD, in February 2016, the Board, in pertinent part, remanded for additional development. In July 2017, the Board, in pertinent part, denied a disability rating in excess of 50 percent. In June 2018, the United States Court of Appeals for Veterans Claims (Court) granted the parties’ Joint Motion for Partial Remand (JMPR) and vacated the Board’s decision. In October 2019, the Board, in pertinent part, remanded for additional development. Regarding the claim of an increased rating for IBS, in February 2016, the Board, in pertinent part, granted a disability rating of 30 percent for IBS under Diagnostic Code (DC) 7319, but denied a disability rating under DC 7332. In November 2016, the Court granted the parties’ JMPR and vacated the Board’s decision. In July 2017 and August 2018, the Board, in pertinent part, for additional development. The record reflects that the Veteran received an October 2020 letter indicating that he could request a virtual tele-hearing instead of waiting for a travel board hearing. Upon further review, the Veteran does not have a pending hearing request. The Veteran provided testimony in a hearing before the undersigned Veterans Law Judge (VLJ) in December 2015. The transcript of the hearing is of record and has been considered in making this decision. 1. Disability rating for PTSD Remand is required because the agency of jurisdiction (AOJ) returned this claim to the Board prematurely without having completed the October 2019 remand directives. The October 2019 remand directed the AOJ to readjudicate this claim after associating any VA treatment records not already of record with the claims file and providing a new VA examination. In the June 2020 Supplemental Statement of the Case for IBS, the AOJ stated that the appeal of the current evaluation for PTSD is still in process and that decision will soon follow. However, the AOJ returned this claim to the Board in August 2020 before readjudicating it. Thus, the Board must remand so that the AOJ can readjudicate the claim. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). 2. Disability rating for IBS The Veteran is currently service-connected for the maximum 30 percent rating, effective April 1, 2011, for IBS under DC 7319. See 38 C.F.R. § 4.114, DC 7319. The Veteran was previously assessed a disability rating of 10 percent, effective October 31, 2003. In an October 2020 brief, the Veteran appears to request a disability rating in excess of 10 percent, prior to April 1, 2011. The Veteran, however, did not file a notice of disagreement to the April 2016 rating decision that found an effective date of April 1, 2011, and there is no freestanding claim for an earlier effective date. See Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006) (stating that VA has no authority to adjudicate a freestanding claim for an earlier effective date in an attempt to overcome the finality of an unappealed rating decision). The Veteran can file a claim for an earlier effective date based on clear and unmistakable evidence. The issue is whether the Veteran is entitled to a disability rating under DC 7332. In the August 2018 remand, the VA examiner was asked to clarify whether any fecal leakage or involuntary bowel movements are part of the Veteran’s service-connected IBS and, if so, to comment on the severity of such symptoms, to include the Veteran’s December 2015 testimony regarding changing underwear. In May 2019, a VA examiner stated the Veteran has not reported to his treating physicians and is not being treated for fecal leakage and involuntary bowel movements, and is instead being treated for constipation. The examiner specifically noted the Veteran was taking one capsule of Miralax per day in November 2018 for constipation. The examiner opined that the actual VA treatment records outweigh the Veteran’s statements made for disability purposes. The examiner further opined that, if the Veteran is experiencing fecal leakage or involuntary bowel movements, it is less likely than not related to service-connected IBS and would be related to overtreatment of constipation. The Board finds that it cannot make a fully-informed decision at this time. The Veteran is competent to report symptoms of fecal leakage or involuntary bowel movements. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (stating that a veteran is competent to report symptoms that are capable of lay observation). The VA examiner, however, improperly considered the Veteran’s lay evidence due to the absence of treatment in VA records without providing a proper foundation for drawing negative inferences for the absence of evidence. See Horn v. Shinseki, 25 Vet. App. 231, 239 n.7 (2012). Notably, an April 2016 VA treatment record noted that, when the Veteran was still working, he reported not being able to make it to work 56 miles away without having an involuntary stool. Moreover, it appears the Veteran began taking Miralax in 2018 due to chemotherapy for recurrence of service-connected lung cancer. Accordingly, the VA examiner’s opinion that any symptoms would be related to overtreatment of constipation would have no bearing on evidence, to include the December 2015 hearing testimony and the April 2016 VA treatment record, suggesting symptoms prior to 2018. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (stating that a medical opinion is inadequate if it is not factually accurate). Similarly, although the Veteran’s VA physicians did not appear to suggest the Veteran was overtreating for constipation, the VA examiner’s opinion would still show symptoms from a service-connected disability even if it was not related to service-connected IBS. The matters are REMANDED for the following actions: 1. Obtain the Veteran’s VA treatment records for the period from June 2020 to the present. 2. The AOJ must complete the directives in the October 2019 remand and readjudicate the Veteran’s claim for a disability rating in excess of 50 percent for PTSD. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected IBS. Obtain an opinion to clarify whether any fecal leakage or involuntary bowel movements are part of the Veteran’s service-connected IBS or any other service-connected disability. The examiner should report all signs and symptoms necessary for evaluating the Veteran’s disability under DC 7332. (Continued on the next page.)   The examiner must provide a rationale for all opinions. The examiner should give consideration to the March 2017 brief where the Veteran’s representative noted that the Veteran’s December 2015 hearing testimony regarding changing underwear suggests that the Veteran has leakage, and other evidence, to include an April 2016 treatment record where the Veteran reported not being able to make it to work 56 miles away without having an involuntary stool. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Craig Ormson, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.