Citation Nr: 21062856 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 18-12 993 DATE: October 12, 2021 THE ISSUES Whether VA was correct in reducing monthly compensation benefits for 289 days for Fiscal Year 2012. Entitlement to an initial compensable evaluation for irritable bowel syndrome (IBS). ORDER The issue of the reduction of monthly compensation benefits for 289 days for Fiscal Year 2012 is dismissed. Entitlement to an initial evaluation of 30 percent for IBS is granted. FINDINGS OF FACT 1. At his July 2021 Board Hearing, which was prior to the promulgation of a decision in the appeal, the Veteran withdrew the issue of the propriety of the reduction of monthly compensation benefits for 289 days for Fiscal Year 2012. 2. During the period on appeal, the Veteran's IBS has been severe with diarrhea with more or less constant abdominal distress. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issue of the propriety of the reduction of monthly compensation benefits for 289 days for Fiscal Year 2012 by the appellant (or his or her authorized representative) have been met. 38 U.S.C. § 7105; § 19.55. 2. The criteria for an initial disability rating of 30 percent, but no higher, for irritable bowel syndrome (IBS) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.21, 4.114, Diagnostic Code 7319 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army from August 2001 to December 2001, October 2004 to January 2006, November 2008 to January 2010, June 2010 to February 2012, May 2012 to June 2013. Additionally, it appears that the Veteran is currently on active duty as of January 2021. This matter comes before the Board of Veterans Appeals (Board) from an August 2017 Rating Decision of a Department of Veteran's Affairs (VA) Regional Office (RO). In July 2021, the Veteran testified at a virtual Video Conference Board Hearing before the undersigned Veterans Law Judge. A transcript has been associated with the record. 1. The issue of the reduction of monthly compensation benefits for 289 days for Fiscal Year 2012 is dismissed. At his July 2021 Board Hearing, the Veteran withdrew the issue of the reduction of monthly compensation benefits for 289 days for Fiscal Year 2012. See July 2021 Board Hearing transcript. At the time of the hearing, the undersigned VLJ explained the consequences of withdrawal of the issue to the Veteran. The Veteran understood the consequences of the withdrawal at that time. See Acree v O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018), adopting the rule of DeLisio v. Shinseki, 25 Vet. App. 45, 57-58 (2011). Hence, there remain no allegations of errors of fact or law for appellate consideration regarding this claim, the Board does not have jurisdiction to review it, and it is dismissed. 2. Entitlement to an initial evaluation of 30 percent for IBS is granted. The Veteran claims that the severity and symptoms of his IBS warrants a 30 percent evaluation. See Hearing Transcript. His IBS is currently evaluated at noncompensable under 38 C.F.R. § 4.114, Diagnostic Code 7319. See July 2019 Rating Decision. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule). Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, as is the case here, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999). Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Under Diagnostic Code 7319 (which provides the rating criteria for irritable colon syndrome), a noncompensable rating is assigned for mild irritable colon syndrome with disturbances of bowel function with occasional episodes of abdominal distress. A 10 percent rating is assigned for moderate irritable colon syndrome with frequent episodes of bowel disturbance with abdominal distress. A maximum 30 percent rating is assigned for severe irritable colon syndrome with diarrhea or alternating diarrhea and constipation with more or less constant abdominal distress. 38 C.F.R. § 4.114. Here, the Veteran claims that his IBS causes diarrhea with constant abdominal distress in the form of abdominal cramps daily. When cramping occurs, he has extreme urgency associated with his bowel movements. In his testimony, the Veteran stated that he experiences diarrhea most of the time and believes that his condition is severe. See July 2021 Board Hearing transcript. In July 2017, the Veteran was afforded a VA intestinal conditions examination. The examiner noted that the Veteran had a diagnosis of IBS, with diarrhea "after waking up in the morning and after every meal." However, the examiner indicated that the Veteran's IBS did not cause episodes of bowel disturbances with abdominal distress. Additionally, the examiner noted that the Veteran's IBS did not impact his ability to work. In a December 2017 Notice of Disagreement, the Veteran claimed that he suffered from diarrhea on a daily basis. The Veteran was also afforded an additional VA examination in January 2018. The examiner noted that the Veteran had a diagnosis of IBS, with diarrhea 4-6 times a day and abdominal distension preceding bowel movements. Additionally, the examiner indicated that the Veteran's IBS resulted in episodes of bowel disturbances with abdominal distress. These were described as frequent episodes of abdominal cramping and distention 4-6 times per day episodes. Finally, the examiner noted that the Veteran's IBS impacted his ability to work by requiring urgent access to the bathroom. A January 2020 private treatment note reveals that the Veteran "always" had borborygmi and "mild [abdominal discomfort]" that was eased by bowel movements. In the July 2021 Board hearing, the Veteran explained that he was asked in his initial evaluation whether he had stomach pain and that he responded in the negative because he rushed to the facilities before it got to the point of pain. The Veteran testified that the bowel movements relieved "a lot of the pressure and cramping." The Veteran testified that he experienced tightness, cramping and that his stomach was "constantly growling and making noises." He described his bowel movements as occurring six to eight times per day which were productive of diarrhea. Additionally, the Veteran testified as to bleeding associated with his diarrhea. Private treatment records submitted by the record from July 2021 confirm the Veteran's testimony. To wit, they reveal episodes of diarrhea 6-10 times daily with preceding abdominal discomfort and cramping. A review of systems reveals "positive for abdominal pain and diarrhea." Finally, the record indicates "constant abdominal distress/discomfort and frequent unpredictable loose stools." (Continued on next page.) The Board finds that the evidence supports a finding that during the period on appeal, the Veteran's IBS has been severe and has caused diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. The reports of the July 2017 and January 2018 VA intestinal conditions examinations do not explicitly state that the Veteran's IBS is severe or that it was productive of more or less constant abdominal distress. However, the Board finds the Veteran competent to report his above-referenced symptoms and credible in that regard; considering his November 2020 hearing testimony and accompanying private treatment records, the Board finds that his IBS has been severe and productive of diarrhea with more or less constant abdominal distress. Therefore, entitlement to an initial evaluation of 30 percent for IBS is granted. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. E. Geary, 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.