Citation Nr: 21000440 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 17-04 845A DATE: January 5, 2021 ORDER Entitlement to a rating in excess of 20 percent for a lumbar spine disability is dismissed. Entitlement to service connection for polyneuropathy of the extremities is dismissed. Entitlement to service connection for hypertension is dismissed. Entitlement to an initial 30 percent rating for irritable bowel syndrome with constipation (IBS-C), over the entire appeal period, is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran withdrew his appeals for entitlement to a rating in excess of 20 percent for a lumbar spine disability, entitlement to service connection for polyneuropathy of the extremities, and entitlement to service connection for hypertension. 2. During the period on appeal, the Veteran’s IBS-C more closely approximated severe symptoms with bloating, abdominal distension, constipation and infrequent bowel movement with straining and anal bleeding, resulting in more or less constant abdominal distress. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claims of entitlement to a rating in excess of 20 percent for a lumbar spine disability, entitlement to service connection for polyneuropathy of the extremities, and entitlement to service connection for hypertension have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for establishing a 30 percent evaluation, but no higher, throughout the appeal period for the Veteran’s IBS-C have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.10, 4.114, Diagnostic Code 7319. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1978 to June 1998. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a May 2015 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In November 2020, the Veteran testified at a hearing before the undersigned. During the pendency of this appeal, a May 2018 rating decision allowed service connection for an acquired psychiatric disorder and for left and right lower extremity radiculopathy. This represents a complete grant of the benefits sought as to those claims, and the issues are no longer in appellate status. Withdrawn Claims 1. Entitlement to a rating in excess of 20 percent for a lumbar spine disability 2. Entitlement to service connection for polyneuropathy of the extremities 3. Entitlement to service connection for hypertension. The Board may dismiss any appeal that fails to allege a specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55(a). Withdrawal may be made by the appellant or by his or her authorized representative and must include the name of the appellant, the file number, and a statement that the appeal is withdrawn. 38 C.F.R. § 19.55(b). During the November 2020 hearing, which identified the Veteran’s name and file number, the Veteran’s authorized representative requested withdrawal of the appeals for entitlement to a rating in excess of 20 percent for a lumbar spine disability, entitlement to service connection for polyneuropathy of the extremities, and entitlement to service connection for hypertension. Therefore, there remain no allegations of errors of fact or law for appellate consideration with regard to these issues. Accordingly, the Board does not have jurisdiction to review these appeals and they are dismissed. Increased Rating 4. Entitlement to an initial rating in excess of 10 percent for irritable bowel syndrome with constipation Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule). 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are interpreting reports of examination in light of the whole recorded history; reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person’s ordinary activities, 38 C.F.R. § 4.10. See Schafarth v. Derwinski, 1 Vet. App. 589 (1991). Where the claimant has expressed dissatisfaction with the assignment of an initial evaluation following an award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999). Here, the Veteran seeks an initial increased evaluation for service-connected irritable bowel syndrome with constipation (IBS-C). The disability is currently rated as 10 percent disabling under Diagnostic Code 7319, effective September 25, 2014, the date the Veteran’s initial claim for service connection was filed. Ratings under the digestive system codes are not to be combined with each other. 38 C.F.R. § 4.114. Rather, a single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture. Id. Under Diagnostic Code 7319, for irritable colon syndrome (spastic colitis, mucous colitis, etc.), a 10 percent evaluation is warranted for moderate irritable colon syndrome, with frequent episodes of bowel disturbance with abdominal distress. A 30 percent evaluation is warranted for severe irritable colon syndrome, with diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. See 38 C.F.R. § 4.114, Diagnostic Code 7319. An April 2015 VA intestinal conditions examination was provided to evaluate the Veteran’s claim. The examiner diagnosed IBS-C and confirmed current symptoms of bloating, abdominal distension, and constipation. He indicated this condition resulted in “more or less constant abdominal distress.” The Veteran submitted records from Dr R. B., his private gastroenterologist. In March 2015, Dr. R. B. noted the Veteran’s history of anal fissures, pain due to fecal impaction, and multiple emergency room visits. He observed the Veteran used stool softeners and milk of magnesia and had ongoing bleeding with bowel movements. In January 2017, Dr. R. B. found the Veteran experienced infrequent stools, straining during bowel movements, bloating, gas, and constipation lasting, on average, four days a week. He described the Veteran’s IBS-C as severe and stated the condition caused more or less constant abdominal distress. In November 2017, the Veteran submitted a VA intestinal conditions disability benefits questionnaire completed by Dr. R. B. IBS-C was again described as resulting in more or less constant abdominal distress. In May 2018 a second VA intestinal conditions examination was provided. The examiner noted symptoms of abdominal distension with some daily bloating and chronic constipation. He stated the Veteran experienced frequent episodes of bowel disturbance with abdominal distress and he observed there had been more than seven such episodes over the previous 12-month period. However, he did not find the Veteran had more or less constant abdominal distress. The Veteran submitted March 2020 records from the Capital City Gastroenterology, P.C. These records reflect continuing symptoms of chronic constipation, bloating, and nausea. In November 2020, the Veteran testified he experiences consistent abdominal pain and has infrequent (every three to five days) bowel movements with straining and anal bleeding. Based on these reports, the Board finds the evidence throughout the appeal period shows a pattern of symptoms that more nearly approximates more or less constant abdominal distress characterized by abdominal pain and constipation with infrequent bowel movements, straining, and anal bleeding. Resolving reasonable doubt in favor of the Veteran, the Board finds he is entitled to an initial rating of 30 percent, but no higher, for service-connected IBS-C. This is the maximum schedular rating available under Diagnostic Code 7319. 38 C.F.R. § 4.114, Diagnostic Code 7319 The Veteran testified that he is in receipt of disability benefits from the Social Security Administration (SSA). Records related to his SSA claim are not currently associated with the file. As the highest schedular rating for IBS-C has been applied over the entire appeal period, there is no prejudice to the Veteran in deciding this claim on the evidence currently of record. REASONS FOR REMAND Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Here, service connection is established for IBS-C and other conditions including a psychiatric disorder, a back disability, a neck disability, bilateral knee conditions, and radiculopathy of the upper and lower extremities. Over the entire appeal period, the Veteran’s psychiatric disorder is rated as 50 percent disabling and his combined disability rating is 90 percent. Thus, he meets the schedular requirement to entitlement to a TDIU. See 38 C.F.R. § 4.16. In November 2020, the Veteran testified that he was not working, and he received SSA disability benefits. He stated IBS-C interfered with his ability to work because he it caused him to take extended restroom breaks during the workday. The Board also notes an October 2014 letter from the U. S. Office of Personnel Management is of record. This letter states the Veteran was disabled from performing his duties as an acquisition program manager due to polyneuropathy. The issue of entitlement to TDIU has been raised by the record and it is part and parcel of the Veteran’s appeal of the initial rating assigned for his service-connected IBS-C disability. See Rice v. Shinseki, Vet. App. 447 (2009). When there has been a determination with regard to SSA benefits, the records concerning that decision must be requested, if relevant. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). The Veteran’s SSA records have potential relevance to the issue of entitlement to a TDIU and these records are not yet associated with the claims file. Accordingly, they must be requested. The matters are REMANDED for the following action: 1. Request the Veteran’s SSA records. Associate any obtained records with the claims file. If records are not obtained, associate documentation of all efforts to obtain the records and make appropriate findings consistent with statute and regulation as to why efforts to obtain the records ceased. 2. Ask the Veteran to complete a TDIU claim form. Perform any additional development necessary to evaluate the claim. Then adjudicate the issue of entitlement to a TDIU. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jeanne Celtnieks 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.