Citation Nr: 20022496 Decision Date: 04/01/20 Archive Date: 04/01/20 DOCKET NO. 12-02 781 DATE: April 1, 2020 REMANDED 1. Entitlement to a rating in excess of 30 percent for pancolitis (to include irritable bowel syndrome) is remanded. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from September 1995 to December 1996. These matters are before the Board of Veterans’ Appeals (Board) on remand from the U.S. Court of Appeals for Veterans Claims (CAVC). The matter was initially before the Board on appeal of a March 2011 rating decision. In January 2013,, a videoconference hearing was held before the undersigned; a transcript is in the record. In April 2014 and October 2017, the Board remanded the matters for additional development. An October 2018 Board decision denied the Veteran entitlement to a rating in excess of 30 percent for pancolitis (to include irritable bowel syndrome) and entitlement to a TDIU rating. He appealed that decision to the CAVC. A July 2019 CAVC Order vacated the Board’s October 2018 decision that denied a rating in excess of 30 percent for pancolitis and a TDIU rating and remanded it to the Board for further development and re-adjudication consistent with terms of a June 2019 Joint Motion for Remand (JMR). 1., 2. Entitlement to a rating in excess of 30 percent for pancolitis (to include irritable bowel syndrome) and entitlement to a TDIU. In the June 2019 JMR, the parties agreed that vacatur and remand was required for multiple reasons. First, the parties agreed that the Board erred by not considering whether a separate rating is warranted under 38 C.F.R. § 4.114, Diagnostic Code (Code) 7332 (impairment of sphincter control) due to fecal incontinence. The Board acknowledges that Code 7332 was not discussed in its decision (and that a separate rating under that Code is not expressly prohibited) and that VA treatment records note that the Veteran reported stool seepage since a hemorrhoidectomy in January 2017 (November 2017) and that he continued to have pain in the rectal area and stool seepage (April 2018). In a November 2019 statement, he reported that in 2017 he began wearing adult diapers (because he soiled himself) at least twice a week. However, it is not clear from the evidence of record if the fecal leakage is due to his service-connected pan colitis or another (nonservice-connected) disability (e.g., hemorrhoids). Considering the allegation of worsening, the duration of the interval since he was last examined (in April 2017), and the lack of certainty regarding the cause of the fecal leakage, an examination to assess the pan colitis is necessary. The parties also agreed that the Board erred when it failed to adequately consider the Veteran’s occupational history and education when it determined that his service-connected disabilities did not preclude him from engaging in clerical work of a sedentary nature. Regardless, the matter of entitlement to a TDIU rating is inextricably intertwined with the claim for increase that is remanded, and consideration of that matter must be deferred pending resolution of the increased rating claim. The record contains records of VA treatment the pancolitis only up to April 2018; as he continues to receive ongoing VA treatment for the disability, and records of such treatment are pertinent evidence constructively of record, outstanding records of the treatment must be obtained and considered. The matters are REMANDED for the following: 1. Secure for the record complete, to the present, updated records of all VA evaluations and treatment the Veteran has received for his service-connected pancolitis disability since April 2018. 2. Then arrange for the Veteran to be examined by an appropriate clinician to assess the severity of his pancolitis. The Veteran’s record must be reviewed by the examiner. Upon review of the record and examination of the Veteran the examiner should: (a) Identify all pathology and manifestations of pancolitis reported by the Veteran, found on examination, or shown by the record during the pendency of this claim. Specifically indicate whether the leakage reported by the Veteran is a manifestation of the pancolitis (or of another, nonservice-connected disability entity, such as hemorrhoids). If not, identify the disability/disease to which it is attributed (and explain why that is so). (b) Describe in detail all pathology, manifestations (and their frequency and severity), and impairment of function due to pancolitis in detail. If the leakage the Veteran has reported is determined to be a manifestation of the pancolitis, describe its severity and frequency (in terms of the criteria in Code 7332) and discuss its treatment and its impact on occupational functioning. All opinions must include rationale. 3. The readjudication of this claim must include a determination whether (or not) leakage is encompassed by the service-connected pancolitis entity and must reflect consideration whether the leakage warrants a separate rating under Code 7332. 4. Review the record, arrange for any further development deemed necessary, and readjudicate the claim for a TDIU considering all additional information received, and the determination on readjudicated increased rating claim. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Bayles, 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.