Citation Nr: 21065895 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 13-15 545 DATE: October 27, 2021 ORDER Entitlement to an initial disability rating of 30 percent, but no higher, for the period prior to November 26, 2012, and from February 1, 2013 for residuals of a ruptured colon to include irritable bowel syndrome is granted. REMANDED Entitlement to an initial disability rating in excess of 20 percent prior to September 4, 2009, from November 1, 2009 to March 4, 2010, and from May 1, 2010 for residuals of a left scapula fracture (left shoulder disability) is remanded. FINDINGS OF FACT For the entire period on appeal, the Veteran's service-connected residuals of a ruptured colon to include irritable bowel syndrome is manifested by severe symptoms, including diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. CONCLUSIONS OF LAW For the entire period on appeal, the criteria for an initial disability rating of 30 percent, but no higher, for service-connected residuals of a ruptured colon to include irritable bowel syndrome have been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.114, Diagnostic Code 7319. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from June 1988 to May 2008. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2015 and December 2018, the Board remanded the matters to the Agency of Original Jurisdiction (AOJ) for additional development, and they have since returned for further appellate review. Regarding the issue of higher rating for residuals of a ruptured colon, the Board finds that there was substantial compliance with the December 2018 remand directive for the AOJ to obtain outstanding treatment records and afford the Veteran a VA examination. Stegall v. West, 11 Vet. App. 268, 271 (1998). The December 2020 VA examination for intestinal conditions was adequate because it was based on consideration of the Veteran's description of his symptoms, a review of the claims file, and and a physical evaluation. 1. Disability Rating for Residuals of Ruptured Colon Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. This claim stems from a March 2008 claim where an April 2009 rating decision awarded service connection for residuals of ruptured colon pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7319. He filed an appeal seeking a higher rating, and the case is now before the Board. Under Diagnostic Code 7319, a zero percent rating is warranted for mild disturbances of bowel function with occasional episodes of abdominal distress. 38 C.F.R. § 4.114, Diagnostic Code 7319. The next higher rating of 10 percent is warranted for moderate symptoms, described as frequent episodes of bowel disturbance with abdominal distress. Id. The next higher and highest rating of 30 percent is warranted for severe symptoms, described as diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. Id. Turning to the evidence, in a September 2009 VA treatment, the Veteran reported experiencing intermittent episodes of diarrhea, constipation, and rectal pain. In a January 2010 treatment, the Veteran complained of alternating episodes of diarrhea and constipation since his partial colectomy in 2005. In an August 2010 private treatment, it was noted that the Veteran had abdominal pains which started on or around the time of his colon removal operation. In an August 2010 private treatment, it was noted that the Veteran had severe upper abdominal pain. In a May 2012 disability benefits questionnaire (DBQ), it was noted that the Veteran had diverticulitis and peritonitis in 2005 with laparotomy and ileostomy. The examiner noted that the Veteran had daily diarrhea and vomiting, and pulling pain when attempting work or aggravated by movements of the body. The Veteran presented for a VA examination in October 2016. It was noted that the Veteran developed intestinal obstruction secondary to post-surgery adhesion and an incision hernia and underwent a procedure in November 2012. The Veteran recently developed abdominal pain, bloating, and vomiting in November 2015 and was hospitalized at a hospital in Japan where it was found that he had a small bowel obstruction. He reports current symptoms of episodes of abdominal pain, transient bloating, and constipation (hard stools) at two times month. The examiner noted that the Veteran had episodes of abdominal pain, transient bloating, and constipation (hard stools) two times a month with no nausea or vomiting. The examiner noted that the Veteran had occasional episodes of bowel disturbance with abdominal distress. During a May 2017 and July 2017 private treatment, the Veteran continued to have repeated constipation and diarrhea. In a December 2017 VA treatment note, it was indicated that the Veteran had a long history of irritable bowel syndrome mixed with diarrhea and constipation episodes. In January 2018, March 2018, and June 2018, and July 2018, the Veteran reported experienced repeated symptoms of diarrhea and constipation. The Veteran presented for another VA examination in September 2018. The Veteran reported having a number of emergency room visits, the last one occurring in July 2018, for recurring ileus. He reported experiencing alternating diarrhea and constipation on a daily basis. It was noted that the Veteran had moderate distention, mild diffuse tenderness, daily diffuse abdominal pain and cramping, frequent nausea, occasional vomiting, and constant sensation that he is constipated despite having bowel movements. Most recently, the Veteran presented for a VA examination in December 2020. The examiner noted that during the course of the Veteran's recurrent surgical conditions, the Veteran developed irritable bowel syndrome characterized by daily constipation alternating with diarrhea, chronic increased flatus and diffuse abdominal bloating, chronic intermittent nausea and vomiting, bowel movement urgency, and feeling of incomplete evaluation of stool. The Veteran had frequent episodes of bowel disturbances with abdominal distress, and sudden onset of sharp abdominal pain, nausea, vomiting, and prostration that often requires visit to the emergency room for fluids and observation. The examiner noted that the Veteran has experienced these symptoms since his surgery in 2005. Based on the foregoing and resolving all reasonable doubt in the Veteran's favor, the Board finds that a 30 percent rating, but not higher, for residuals of the ruptured colon for the period on appeal have been met. This is the highest possible rating under Diagnostic Code 7319. Notably, the Board gives great probative weight to the December 2020 VA examiner who reviewed the record and interviewed the Veteran and determined that his current symptoms meet the 30 percent rating criteria of severe symptoms, described as diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. The examiner opined that the Veteran has had similar symptoms since his 2005 surgery, which is supported and corroborated by the evidence of record. Accordingly, excluding the temporary total evaluation periods, the evidence of record shows that the Veteran is entitled to a 30 percent rating, but not higher, for his service-connected residuals of ruptured colon during the entire period on appeal. 38 C.F.R. § 4.3. REASONS FOR REMAND 1. Disability Rating for Left Shoulder Disability is Remanded. As part of the December 2018 remand, the Board instructed the AOJ to obtain any outstanding treatment records and afford the Veteran a VA examination to assess the current severity of his service-connected left shoulder disability. Adequate attempts were made to obtain his treatment records. During a December 2020 VA examination, the Veteran reported flare-ups that affected his range of motion, but the examination was not performed during flare-up and after repetitive use over time. The examiner noted that pain would limit functional ability, but indicated that range of motion could not be estimated. In support of this finding, the examiner explained that the Veteran experienced daily pain and weakness about 24 hours per day with moderate severity. The examiner noted that the pain occurred after excessive use of left shoulder and left upper extremity and is alleviated by rest. This opinion is insufficient as it describes the Veteran's symptoms but does not provide a clear explanation as to why the examiner could not describe the estimated range of motion during flare ups or after repetitive use over time. The Board finds that there was not substantial compliance with the December 2018 remand as the VA examiner's opinion was incomplete and thus, an addendum VA medical opinion is necessary. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: The claims file should be sent to the December 2020 examiner, if available, to offer estimation of range of motion during flare-ups or after repetitive use over time. If it is not possible to specifically estimate the range of motion during flare-up and after repetitive use over time without speculation, the examiner is asked to provide a specific explanation as why the available information, including the Veteran's own statements, is not sufficient to make such an estimate. The need for an examination is left to the discretion of the examiner. A rationale for all opinions offered is requested as adjudicators are precluded from making any medical findings. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Mathew 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.