Citation Nr: 21067886 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 16-30 705 DATE: November 5, 2021 ORDER Entitlement to service connection for irritable bowel syndrome (IBS) is granted. Entitlement to a rating in excess of 50 percent prior to September 8, 2015, and in excess of 70 percent on and after September 8, 2015, for posttraumatic stress disorder (PTSD) with depression and a panic disorder is denied. REMANDED Entitlement to a rating in excess of 10 percent prior to January 11, 2021, and in excess of 20 percent on and after January 11, 2021, for lumbosacral strain is remanded. Entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy is remanded. FINDINGS OF FACT 1. Service connection has been established for PTSD with depression and a panic disorder, lumbosacral strain, right lower extremity radiculopathy, and tinnitus. 2. IBS has been shown to have been aggravated by the service-connected PTSD with depression and a panic disorder. 3. Prior to September 8, 2015, the service connected psychiatric disability was shown to be productive of no more than occupational and social impairment with reduced reliability and productivity due to an anxious mood; a moderately anxious affect; panic attacks once or twice a week; a linear thought process; intact judgment and insight; and no suicidal or homicidal ideation. 4. On and after September 8, 2015, the service connected psychiatric disability has been shown to be productive of no more than occupational and social impairment with reduced reliability and productivity due to symptoms including a dysphoric mood; anxiety; a flat affect; suspiciousness; "near-continuous panic or depression affecting the ability to function independently, appropriately and effectively;" chronic sleep impairment, "mild memory loss, such as forgetting names, directions or recent events;" logical and goal directed thought processes; "impairment of short and long term memory, for example, retention of only highly learned material, while forgetting to complete tasks;" "disturbances of motivation and mood;" "difficulty in establishing and maintaining effective work and social relationships;" "difficulty adapting to stressful circumstances;" and no hallucinations, delusions, or suicidal or homicidal ideation. CONCLUSIONS OF LAW 1. The criteria for service connection for IBS have been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.310(a). 2. The criteria for a rating in excess of 50 percent prior to September 8, 2015, and in excess of 70 percent on and after September 8, 2015, for PTSD with depression and a panic disorder has not been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.130, Diagnostic Codes 9411, 9413, 9435. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 2005 to July 2005; from March 2006 to July 2007; from May 2009 to July 2010; and from March 2013 to September 2013. He served in Iraq and Afghanistan and was awarded the Combat Action Badge. The Veteran had additional duty with the Oregon Army National Guard. The Veteran appeared at a February 2020 videoconference hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. Service Connection for IBS The Veteran asserts that service connection for IBS is warranted as claimed disability is the result of the service-connected PTSD. Service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Service connection shall be granted on a secondary basis under the provisions of 38 C.F.R. § 3.310(a) where it is demonstrated that a service-connected disorder has aggravated a nonservice connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Service connection has been established for PTSD with depression and a panic disorder, lumbosacral strain, right lower extremity radiculopathy, and tinnitus. A December 2005 treatment record from L Dantas Belbura, M.D., reports that the Veteran was diagnosed with IBS. A January 2006 Oregon Army National Guard physical evaluation states that the Veteran had "mild IBS type issues, being managed." An August 2014 Department of Veterans Affairs (VA) treatment record indicates that the Veteran had "IBS with frequent BM loose stool with bloating/cramping; lactose intolerance." At the February 2020 Board hearing, the Veteran testified that he had been diagnosed with IBS by his Kaiser Permanente physicians. He stated that his treating physicians have found that his IBS was worsened by the service-connected PTSD. The report of a February 2021 gastrointestinal examination conducted for VA states that the Veteran was diagnosed with IBS. The examiner commented that IBS "is a condition that is tightly associated with mental health" and concluded that the service connected PTSD aggravated the IBS. The Veteran has been diagnosed with IBS. A VA examiner concluded that the IBS had been aggravated by the service connected psychiatric disability. Therefore, the evidence is in at least equipoise as to whether the diagnosed IBS is related to the service connected psychiatric disabilities. Resolving all reasonable doubt in the Veteran's favor, the Board of Veterans' Appeals (Board) concludes that service connection for IBS is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Increased Rating for PTSD with Depression and a Panic Disorder The Veteran asserts that a 70 percent rating is warranted for the service connected psychiatric disability during all relevant periods. Disability ratings are determined by comparing the Veteran's current symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. PTSD, panic disorder, and unspecified depressive disorder are rated under the General Rating Formula for Mental Disorders. A 50 percent rating is warranted where there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating requires occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful situations (including work or a worklike setting); and inability to establish and maintain effective relationships. A 100 percent rating requires total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Codes 9411, 9413, 9435. Period prior to September 8, 2015 An October 2014 VA treatment record indicates that the Veteran complained of feeling "more agitated over all" and numb and experiencing weekly panic attacks. The Veteran was observed to be neatly dressed and oriented to time, place, and situation. On mental status examination, the Veteran exhibited no suicidal or homicidal ideation. A February 2015 VA treatment record states that the Veteran complained of anxiety and weekly panic attacks. The Veteran was observed to be neatly dressed and oriented to time, place, and situation. On mental status examination, the Veteran exhibited a "more level" mood; a "mildly anxious to full range congruent" affect; linear thought process; intact judgment and insight; and no suicidal or homicidal ideation. An April 2015 VA treatment record conveys that the Veteran complained of experiencing panic symptoms once or twice a week triggered by being late. He reported that his "anxiety has been high" and "impacted his ability to engage and talk with clients." The Veteran was observed to be neatly dressed and oriented to time, place, and situation. On mental status examination, the Veteran exhibited an anxious mood; a moderately anxious affect; and linear thought process; intact judgment and insight; and no suicidal or homicidal ideation. A June 2015 VA mental health clinic treatment record states that the Veteran complained of anxiety and panic symptoms. He reported that he was "working a number of jobs" and "had signed on with the Guard for another year." Prior to September 8, 2015, the service connected psychiatric disability was shown to be productive of occupational and social impairment with reduced reliability and productivity due to an anxious mood; a moderately anxious affect; panic attacks once or twice a week; linear thought process; intact judgment and insight; and no suicidal or homicidal ideation. The Veteran was noted to be working and an active member of the Oregon Army National Guard. Such symptoms clearly merit at least a 50 percent rating under 38 C.F.R. § 4.130. In the absence of objective or subjective evidence of occupational and social impairment with deficiencies in most areas to include work, family relations, judgment, thinking, or mood, the Board finds that a rating in excess of 50 percent for the service connected psychiatric disability is not warranted. Period on and after September 8, 2015 The report of a November 2015 VA psychiatric examination states that the Veteran complained of experiencing anxiety in public; panic attacks on the job when dealing with customers; chronic sleep impairment; and having no close friends. He reported that he was married and had his own stump grinding business. The examiner observed that the Veteran was casually dressed; well-groomed; and oriented to person, place, time, and purpose. On mental status examination, the Veteran exhibited a neutral and depressed mood, a somewhat constricted affect; panic attacks more than once a week; anxiety; logical and goal directed thought processes; "difficulty in establishing and maintaining effective work and social relationships;" "difficulty in adapting to stressful circumstances including work or a worklike setting;" and "no signs of major psychopathology such as hallucinations or delusions." The examiner concluded the service connected psychiatric disability was productive of occupational and social impairment with reduced reliability and productivity. At the February 2020 Board hearing, the Veteran testified that, while he was employed, there were "days where I have to not go to work because it's just too stressful" and "there's days where I'll be at work and I'm just like hoping customers don't want to talk to me because I just get so easily anxious talking to customers." The report of a February 2021 psychiatric examination conducted for VA states that the Veteran complained of excessive anxiety and worry; panic-like episodes three or more times per week; hypervigilance; impaired sleep; social aversion; depression; loss of interest and pleasure in usual activities; loss of libido; appetite issues; weight issues; fatigue; and irritability. The Veteran reported that he ran a stump grinding business. On mental status examination, the Veteran exhibited a dysphoric mood; anxiety; a flat affect; suspiciousness; "near-continuous panic or depression affecting the ability to function independently, appropriately and effectively;" chronic sleep impairment, "mild memory loss, such as forgetting names, directions or recent events;" logical and goal directed thought processes; "impairment of short and long term memory, for example, retention of only highly learned material, while forgetting to complete tasks;" "disturbances of motivation and mood;" "difficulty in establishing and maintaining effective work and social relationships;" "difficulty adapting to stressful circumstances;" and no suicidal or homicidal ideation. The examiner concluded that the service connected psychiatric disability was productive of occupational and social impairment with reduced reliability and productivity. On and after September 8, 2015, the service connected psychiatric disability has been shown to be manifested by no more than occupational and social impairment with reduced reliability and productivity due to symptoms including a dysphoric mood; anxiety; a flat affect; suspiciousness; "near-continuous panic or depression affecting the ability to function independently, appropriately and effectively;" chronic sleep impairment, "mild memory loss, such as forgetting names, directions or recent events;" logical and goal directed thought processes; "impairment of short and long term memory, for example, retention of only highly learned material, while forgetting to complete tasks;" "disturbances of motivation and mood;" "difficulty in establishing and maintaining effective work and social relationships;" "difficulty adapting to stressful circumstances;" and no hallucinations, delusions, or suicidal or homicidal ideation. The Veteran has reported having his own stump grinding business. In the absence of objective or subjective evidence of total occupational and social impairment, the Board finds that a rating in excess of 70 percent for the service connected psychiatric disability is not warranted. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent prior to January 11, 2021, and in excess of 20 percent on and after January 11, 2021, for lumbosacral strain is remanded. The report of a January 2021 spine examination conducted for VA states that the Veteran complained of lumbar spine pain, tightness, and popping which interfered with his job. He reported flare ups once or twice a month. On examination of the spine, the Veteran exhibited a range of motion of forward flexion to 70 degrees, extension to 5 degrees with pain, right lateral flexion to 15 degrees, left lateral flexion to 10 degrees with pain, and lateral rotation to 30 degrees, bilaterally. The examiner commented that "the decreased range of motion is due to pain and as also the direct reason for the functional loss" and the lumbar spine disability impacts his ability to work as it "slows claimant in his ability to do his work" and, as he "has a manual job that requires shoveling and with flares he is unable to do his work." He did not indicate the degree at which the Veteran experienced pain on motion of the lumbosacral spine. In light of that deficiency, the Board finds that the functional loss associated with the service-connected lumbosacral spine disability is unclear and the examination report is of limited probative value. VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). When VA undertakes to obtain an evaluation, it must ensure that the evaluation is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that further VA spine evaluation is need. Clinical documentation dated after October 2020 is not of record. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran's claims. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). 2. Entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy is remanded. Given the nature of the disability, the issue of the rating for right lower extremity radiculopathy is intertwined with the issue of the rating for the lumbosacral spine disability and must also be remanded. The matter is REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for each private healthcare provider who has treated the service connected lumbosacral spine and right lower extremity radiculopathy disabilities. Make two requests for the authorized records from all identified healthcare providers unless it is clear after the first request that a second request would be futile. 2. Obtain any VA treatment records not of record, to include those pertaining to treatment after October 2020. 3. Schedule the Veteran for a VA spine examination conducted by a medical doctor to assist in determining both the current nature and severity of the service connected lumbosacral spine disability and right lower extremity radiculopathy. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should provide the following opinions: (a) Provide ranges of motion for passive and active motion of the lumbosacral spine. The examiner should indicate the degree of spine motion at which any observed pain begins. The examiner should state whether there is any additional loss of lumbosacral spine function due to painful motion, weakened motion, excess motion, fatigability, or incoordination. (b) Indicate to what extent the Veteran experiences functional loss of the spine due to pain or any other symptoms during flare ups or with repeated use. (c) State whether or not there is any ankylosis of the spine or any segment of the spine. (d) Describe any identified right or left lower extremity neurologic disabilities associated with the service-connected lumbosacral spine disability, the nerves affected, and the level of impairment. (e) Note any incapacitating episodes associated with the lumbosacral spine disability and the duration. An incapacitating episode is a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician. (f) The examiner should provide an opinion as to the impact of the service connected disabilities on the Veteran's vocational pursuits. J. T. HUTCHESON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Emily A. Kotroco 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.