Citation Nr: 20021565 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 17-41 713 DATE: March 26, 2020 ORDER An initial rating of 10 percent, but no more, for irritable bowel syndrome (IBS) is granted, subject to the laws and regulations governing the payment of VA monetary benefits. REMANDED Entitlement to an initial compensable rating for status post ligament plantar plate repair right foot is remanded. FINDING OF FACT The Veteran’s report of frequent abdominal distress along with alternating periods of diarrhea and constipation approximates a moderate level of severity of service-connected IBS throughout the entire appeal period. CONCLUSION OF LAW The criteria for a 10 percent rating, but no more, for IBS have been met. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 4.7, 4.114, Diagnostic Code (DC) 7319 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from February 2012 to May 2016. Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as here, the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of “staged rating” is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran’s IBS is currently evaluated as noncompensable, effective May 14, 2016, under 38 C.F.R. § 4.114, DC 7319 for irritable colon syndrome. Under DC 7319, a noncompensable rating is warranted for mild disability with disturbances of bowel function with occasional episodes of abdominal distress. A 10 percent rating is warranted for moderate disability with frequent episodes of bowel disturbance with abdominal distress. A 30 percent rating is warranted for severe disability with diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. The Veteran was diagnosed with IBS during active service after several years of gastrointestinal complaints. Celiac disease and lactose intolerance were first suspected, but after testing, IBS was diagnosed. Service treatment records document that the Veteran was placed on a limited diet and described 75 percent relief of symptoms but noted continued discomfort in the left lower quadrant of his abdomen. Prior symptoms of irregular bowel movements and diarrhea had reportedly improved with the avoidance of food triggers, such as gluten and high fructose corn syrup. A VA examination was conducted in May 2016. The Veteran described ongoing diarrhea alternating with constipation since 2012 with recurrent episodes of loose bowel movements associated with crampy abdominal pain and bloating. He noted that he continued to follow a restricted diet, had experienced no weight loss, and was not prescribed any medication for his IBS. The signs and symptoms attributable to his disability included alternating diarrhea and constipation, with diarrhea occurring for two to three days, followed by constipation for two to three days, and intermittent abdominal bloating one to two times a week on average. A CBC panel revealed that the Veteran did not have anemia. VA treatment records did not document any current IBS complaints, relevant symptomology, or current treatment. Private treatment records denied any gastrointestinal complaints. The Veteran has not reported any additional symptomology or increase in symptom severity. The Board finds that a 10 percent rating is warranted throughout the appeal period. During service, the Veteran began a restricted diet and his gastrointestinal symptoms improved. He has since described alternating episodes of diarrhea and constipation and intermittent abdominal bloating several times per week. The Board finds that the overall picture of the Veteran’s IBS represents a moderate condition resulting in frequent episodes of bowel disturbance with abdominal distress. He did not state how frequently his alternating diarrhea and constipation occurred but did state that he had abdominal bloating a few times per week, suggesting a moderate frequency of symptoms. Entitlement to a rating in excess of 10 percent has not been demonstrated. The Veteran’s symptoms have not required any medical treatment over the appeal period, and he is not currently prescribed any medication to control his symptoms. The one-to-two times weekly description of bloating indicates his IBS symptoms are not more or less constant. He has not had weight loss and has not developed anemia due to his symptoms, which would suggest a more severe effect. As such, the Board finds that the manifestations of the Veteran’s IBS do not warrant a rating in excess of 10 percent. The Board has considered whether any other relevant diagnostic codes may afford the Veteran a higher evaluation for his IBS. However, given the Veteran’s described symptomology and the medical evidence of record, the Board finds that there are no other applicable diagnostic codes. Based on the foregoing, the Veteran’s service-connected IBS warrants a 10 percent evaluation throughout the appeal period. REASONS FOR REMAND The Veteran’s service-connected status post ligament plantar plate repair right foot was last evaluated at a VA examination in May 2016. He described pain with direct pressure on the foot, burning pain when stepped on the wrong way under the big toe, and pain when bending the big toe back in a lunge position. He did not report flare-ups. Since that evaluation, the Veteran has submitted private treatment records and several statements indicating a worsening in symptomology. An August 2016 MRI revealed post-operative scarring, joint effusions, and degenerative changes in the foot. In September 2016, the Veteran reported that his right foot pain had gotten progressively worse for the past 14-16 months with aching pain around his surgical incision, radiating to the ball of his foot. He experienced swelling in the morning and after running, and his pain was aggravated with running and certain shoes. He had been using orthotics which did not provide relief. He described his pain as a 5 to 7 out of 10. The private clinician prescribed a topical NSAID. Use of the prescribed medication appeared to provide some relief at subsequent appointments. However, there was tenderness upon examination, decreased range of motion in the right great toe, and the Veteran was unable to perform a unilateral heel raise without pain. In a statement submitted with his Substantive Appeal, the Veteran stated that the right foot disability caused less movement than normal, weakened movement, and an inability to perform several weight-bearing activities. He experienced increased pain with running and standing for prolonged periods. The Board finds that a new examination is indicated to assess the current extent and severity of the Veteran’s service-connected right foot disability. Further, the Veteran has specifically contended reduced range of motion resulting from the in-service surgery. The only examination of record did not perform range of motion testing. As such, remand is needed to address all reported symptoms associated with the service-connected condition. The matters are REMANDED for the following action: 1. Contact the Veteran and afford him the opportunity to identify or provide any pertinent private treatment records. Assist him in associating any identified records with the claims file. 2. Obtain outstanding VA treatment records, specifically to include records since September 2016, and associate them with the claims file. 3. Schedule the Veteran for a new VA examination to determine the current nature and severity of his right foot disability. The claims folder should be made available to and reviewed by the examiner. All indicated tests and studies should be performed, including range of motion studies in degrees, and the results reported. (a.) In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree at which pain begins. Record the results of range of motion testing for the right foot on both active and passive motion and in weight-bearing and nonweight-bearing. (b.) The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups. The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. (c.) In regard to flare-ups, if the Veteran is not currently experiencing a flare-up, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares, the examiner is requested to provide an estimate of the Veteran’s functional loss due to flare-ups expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. (d.) The examiner’s opinion should reflect consideration of the Veteran’s reports as to his history and symptomatology. (e.) All opinions provided should be fully explained. If any requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 4. Readjudicate the issue on appeal. If any benefit sought remains denied, issue a Supplemental Statement of the Case and return to the Board, if otherwise in order MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Rachel E. Jensen, 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.