Citation Nr: 20048043 Decision Date: 07/17/20 Archive Date: 07/17/20 DOCKET NO. 10-40 408 DATE: July 17, 2020 REMANDED Entitlement to a disability rating exceeding 30 percent prior to September 26, 2015 for ulcerative colitis is remanded. REASONS FOR REMAND The Veteran served on active duty from March 2005 through September 2008. This appeal comes to the Board of Veterans’ Appeals (Board) from a February 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this matter in April 2015 for additional development to include obtaining an adequate VA examination of the Veteran’s disability picture to include during flare-ups. In an August 2016 decision, the Board granted the Veteran an initial disability rating of 30 percent (but no higher) for his ulcerative colitis and denied a rating exceeding 60 percent for the period beginning September 26, 2015. The Veteran appealed the case to the United States Court of Appeals for Veterans Claims (CAVC). In a December 2017 memorandum decision, CAVC vacated the Board’s decision in regard to the Board’s denial of a disability rating exceeding 30 percent for the period prior to September 26, 2015. CAVC found the Board’s decision contained inadequate rationale as to whether the VA examinations of record were in substantial compliance with the Board’s prior remand directives regarding assessing functional limitations due to flare-ups. In July 2018, the Board remanded this matter to the Agency of Original Jurisdiction (AOJ) in order to obtain an adequate retrospective assessment of the severity of the Veteran’s ulcerative colitis to include during flare-ups prior to September 26, 2015. While the AOJ obtained another VA examination of the Veteran’s ulcerative colitis in June 2019, the examiner was unable to provide a complete retrospective assessment because the examiner indicated he did not have access to the Veteran’s complete treatment records to include documented treatment for flare-ups at Philadelphia VA Medical Center (VAMC). In June 2020, the Veteran resubmitted a relevant record from Philadelphia VAMC regarding his flare-ups and requested the assistance of VA in obtaining additional outstanding relevant records. On remand, the AOJ should contact the Veteran and his representative to request their assistance in identifying and obtaining all outstanding relevant records. After associating the outstanding records with the claims file, the AOJ should obtain another opinion from a medical professional that considers all pertinent evidence of record in assessing the severity of the Veteran’s ulcerative colitis to include during flare-ups for the period prior to September 26, 2015. The matters are REMANDED for the following action: 1. The AOJ should contact the Veteran and all current representatives and request their assistance in identifying any outstanding relevant records to include records from Philadelphia VAMC. The AOJ should make reasonable attempts to obtain all identified outstanding records and associate them with the Veteran’s claims file. 2. After associating all identified outstanding relevant records with the claims file, the AOJ should obtain an opinion from an appropriate medical professional regarding the severity of the Veteran’s ulcerative colitis during the period on appeal prior to September 26, 2015. The medical professional should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria based on a review of the claims file including the Veteran’s treatment records, prior VA examinations, and lay statements regarding relevant symptoms (e.g. the Veteran’s statements in April 2014). The medical professional should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the medical professional must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the medical professional (does not have the knowledge or training). 3. After completing the above action and any other necessary development, the claim must be readjudicated. If the claim remains denied, a Supplemental Statement of the Case must be provided to the Veteran and current representatives. After the Veteran has had adequate opportunity to respond, the appeal must be returned to the Board for appellate review. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael Duffy, 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.