Citation Nr: 21068266 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 17-40 140 DATE: November 9, 2021 ORDER Entitlement to a 10 percent rating, but no higher, from November 24, 2015, for irritable bowel syndrome (IBS), is granted, subject to regulations governing the payment of monetary awards. REMANDED Entitlement to service connection for a left foot disability is remanded. FINDING OF FACT From November 24, 2015, the Veteran has had frequent episodes of bowel disturbances with abdominal distress. CONCLUSION OF LAW The criteria for a 10 percent rating for IBS from November 24, 2015, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.114, DC 7319 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1986 to March 2007, including service in the Persian Gulf and in Afghanistan. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Veteran and his wife testified at a videoconference hearing before a Veterans Law Judge. In July 2021, the Veteran was notified that the January 2020 judge was no longer employed at the Board and the Veteran waived his right to a new hearing with a different judge. In April 2020, the Board remanded the Veteran's appeal to the RO for further evidentiary development. The Board's remand order directed the Agency of Original Jurisdiction (AOJ) to obtain contact information for all private physicians and request the associated treatment records; obtain updated VA treatment records; obtain a new VA examination and medical opinion for the Veteran's left foot; and obtain a new VA examination for the Veteran's IBS. The AOJ obtained contact information and requested private treatment records, obtained updated VA treatment records, and obtained a new VA examination for the Veteran's IBS. The AOJ substantially complied with the remand directives concerning the claim for an increased rating for IBS. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999). Entitlement to an increased rating for irritable bowel syndrome (IBS), currently rated as noncompensable. The Veteran was granted service connection for IBS at a noncompensable disability rating effective September 14, 2011. He filed the present claim for an increased rating on November 24, 2015. The Veteran's IBS has been rated under the criteria of Diagnostic Code 7319 for irritable colon syndrome. Under DC 7319, a noncompensable rating is warranted for mild IBS, with disturbances of bowel function with occasional episodes of abdominal distress. A 10 percent disability rating is warranted for moderate IBS with frequent episodes of bowel disturbance and abdominal distress. A maximum schedular 30 percent disability rating is warranted for severe IBS with diarrhea or alternating diarrhea and constipation with more or less constant abdominal distress. Turning to the evidence, VA treatment records indicate that VA clinicians increased the Veteran's dosage of metamucil in February 2015. A VA Disability Benefits Questionnaire (DBQ) for Intestinal Conditions was prepared in January 2016. The examiner diagnosed IBS. The Veteran required continuous medication (psyllium) for the condition and he had not had surgery for the condition. The examiner reported that the Veteran did not have episodes of bowel disturbance with abdominal distress or exacerbations or attacks of the intestinal condition. There was no weight loss or malnutrition, complications, or other general health effects. In terms of functional impact, at times the Veteran must urgently use the bathroom. The examiner stated that the Veteran used medication twice a day and still would only have a bowel movement every 5-7 days at times. In January 2020, the Veteran and his wife testified before a Veterans Law Judge. The Veteran stated that at times he would go 7 or more days without a bowel movement and at other times he has diarrhea for 2-3 days. He said that the periods of constipation make him feel full and uncomfortable and his clothing does not fit, and it impairs his physical activity. The Veteran's wife testified that the Veteran has a healthy diet and uses his medication as directed without relief. The Veteran said that all of his treatment is through VA. A second DBQ for intestinal conditions was prepared in November 2020. The examiner diagnosed IBS and said that continuous medication is not required for control of the condition and that the Veteran does not have episodes of bowel disturbance with abdominal distress. A January 2021 letter from the Veteran's wife stated that the Veteran eats a healthy diet and walks frequently for exercise, but still has constipation and unpredictable diarrhea, leading to bloating and discomfort. In August 2021, the Veteran wrote to VA stating that he will need to have hemorrhoid surgery which he says is due to his IBS. Resolving reasonable doubt in the Veteran's favor, the Board finds the evidence to show IBS symptoms that more nearly approximate a moderate nature. 38 C.F.R. §§ 4.3, 4.7, 4.114, DC 7319. The Veteran has reported recurring bowel frequency, urgency and looseness as symptoms. Although the January 2016 and November 2020 DBQs stated that the Veteran does not have episodes of bowel disturbances with abdominal distress, the Veteran and his wife testified to the contrary. Given the readily observable nature of the symptoms at issue, the Board accepts their reports over the conflicting clinical records. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, n. 4 (Fed. Cir. 2007) (lay evidence competent for readily observable symptoms). A 10 percent rating for IBS is warranted. The IBS symptoms do not more nearly approximate the 30 percent rating criteria for severe symptoms. 38 C.F.R. § 4.114, DC 7319. The evidence does not show that the IBS symptoms are constant. The Veteran's reports describe the IBS symptoms as occurring in episodes. In sum, a 10 percent rating for IBS is warranted from November 24, 2015. As the preponderance of the evidence is against any higher rating, the benefit of the doubt doctrine is not otherwise for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. REASONS FOR REMAND Entitlement to service connection for a left foot disability. is remanded. The Veteran has been diagnosed with several conditions of the left foot, including achilles tendinitis, pes cavus, plantar fasciitis, and a heel spur. See C&P Exam, December 2, 2020; CAPRI, June 30, 2017, p168; Medical Treatment Record Non-Government Facility, February 5, 2020, p1. Service treatment records indicate that the Veteran had an in-service injury to his left foot during a baseball game in March 1990 and the Veteran testified that he injured the left foot marching on gravel and rocks, as well. See STR Medical Photocopy, December 28, 2015, p84; Hearing Transcript, January 15, 2020, p4. The Board remanded this claim in April 2020, directing the agency of original jurisdiction to obtain updated VA treatment records, to send a VA From 21-4142 to the Veteran and to request any private treatment records identified by the Veteran therein, and to obtain a DBQ and medical opinion for the left foot. A DBQ and medical opinion for foot conditions was prepared in November 2020. The examiner concluded that the Veteran's current foot disabilities were less likely than not related to his service because the left foot pain was acute only during service, there is no evidence of chronicity of care, and there is no documented evidence of plantar fasciitis until 2016. The opinion did not address the conditions other than plantar fasciitis and relied on absence of documentation. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.) Finally, the opinion did not address the Veteran's statements to the examiner that the condition onset in 1991, he sought treatment in 2003, and it has worsened since then. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the examiner must consider the Veteran's lay statements). Once VA undertakes the effort to provide an examination, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Remand is necessary to obtain an adequate medical opinion for the Veteran's left foot disabilities. The matter is REMANDED for the following action: 1. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service left foot problems, which may specifically include his service in the Persian Gulf and in Afghanistan. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 2. Schedule the Veteran for a VA examination for his left foot disability. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the left foot disability at least as likely as not related to service, including a baseball injury in 1995, or injuries consistent with walking on gravel and rocks during active duty? The examiner should consider the diagnosed left foot conditions including achilles tendinitis, pes cavus, plantar fasciitis, and a heel spur. The examiner should also consider the service treatment records indicating that the Veteran had an in-service injury to his left foot during a baseball game in March 1990 and the Veteran's January 2020 testimony that he injured the left foot marching on gravel and rocks. (Continued on the next page) The examiner must acknowledge and discuss the Veteran's statement to the November 2020 examiner that the condition onset in 1991, he sought treatment in 2003, and it has worsened since then, as well as any other lay evidence relating to the onset of the condition. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Dean, 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.