Citation Nr: 21072284 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 15-18 421A DATE: December 2, 2021 REMANDED Entitlement to a rating in excess of 10 percent for a bowel obstruction is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1966 to December 1969. The June 2014 rating decision granted service connection for the Veteran's bowel obstruction, assigning a 30 percent prior to June 6, 2014 and a rating of 10 percent thereafter. In his December 2014 notice of disagreement, the Veteran specifically stated that he was only disagreeing with the assignment of a 10 percent rating from June 6, 2014 forward. The Veteran then perfected an appeal to the Board of Veterans Appeals (Board). The Veteran's case was previously before the Board in January 2019, July 2020, and April 2021. Unfortunately, another remand is required. Entitlement to a rating in excess of 10 percent for a bowel obstruction is remanded. The Veteran is currently rated at 10 percent under 38 C.F.R. § 4.114, Diagnostic Code 7301. In a June 2014 rating decision, the Veteran was granted service connection, initially afforded a 30 percent rating due to a bowel obstruction, however as the treatment records reflected that it had been resolved, the same rating decision decreased the disability rating to the current 10 percent disability rating, as of June 6, 2014. Under Diagnostic Code 7301, 10 percent rating is assigned for moderate adhesions of the peritoneum with pulling pain on attempting work or aggravated by movements of the body; or occasional episodes of colic pain, nausea, constipation (perhaps alternating with diarrhea) or abdominal distension. A 30 percent rating is assigned for moderately severe adhesions of peritoneum, partial obstruction manifested by delayed motility of barium meal and less frequent and less prolonged episodes of pain. A 50 percent rating is assigned for severe adhesions of peritoneum, definite partial obstruction shown by X-ray, with frequent and prolonged episodes of severe colic distension, nausea or vomiting, following severe peritonitis, ruptured appendix, perforated ulcer, or operation with drainage. A note associated with Diagnostic Code 7301 provides that ratings for adhesions will be considered when there is a history of operative or other traumatic or infectious (intraabdominal) process, and at least two of the following: disturbance of motility, actual partial obstruction, reflex disturbances, and presence of pain. The Veteran received a VA Intestinal Surgery examination in June 2014. He stated that he developed severe abdominal pain in March 2013 and was admitted to a hospital for five days due to a bowel obstruction. The conservative method of decompression was implemented in attempt to resolve the obstruction. The bowel obstruction episode was resolved with the bowel decompression. The VA examiner diagnosed the Veteran with a small bowel obstruction and noted that there were no signs or symptoms attributable to the disability. In the Notice of Disagreement from November 2014, the Veteran alleged that his disability had not improved, and that he should be afforded a 30 percent rating on a permanent basis, as it would be more appropriate than the 10 percent rating, The Veteran explained that his doctors advised that he would need surgery if he experienced another bowel obstruction. In the June 2015 Appeal to the Board of Veteran's Appeals (form 9), the Veteran asserted that his current 10 percent disability rating did not account for the continuing stress of waiting for the next bowel obstruction episode, which his doctors assert will eventually occur. The Veteran received another VA Intestinal Surgery examination in October 2015. The Veteran was diagnosed with a bowel obstruction. The Veteran reported having daily bowel movements, that are occasionally loose but mostly solid, occasionally dark, and he has an episode of a bowel obstruction in 2013 that was resolved with conservative treatment. The examiner noted that the Veteran's disability manifested with symptoms of diarrhea and pulling pain on attempting work or aggravated by movements of the body. In a separate lay statement from February 2016, the Veteran conceded that the bowel obstruction was cleared in 2013. However, he asserted that the disability had not been resolved, as he is still in jeopardy of a similar, if not worse, blockage in the future. In December 2018, the Veteran submitted an appellate brief and requested a new examination to properly assess the current severity of his disability. As previously noted, the Veteran's claim was remanded by the Board in January 2019. The claim was remanded to obtain private treatment records and to afford the Veteran a new VA examination. The Veteran received yet another VA Intestinal Surgery examination in January 2020. The Veteran was diagnosed with an appendectomy. The Veteran reported that his current symptoms were diarrhea and vomiting. The examiner noted that the Veteran's disability manifested with symptoms of diarrhea. The examiner added that the Veteran's bowel obstruction had been resolved and that the Veteran is left with the remaining appendectomy scarring. As previously noted, the Veteran's claim was remanded by the Board in July 2020. The claim was remanded to obtain private treatment records that had been requested in the January 2019 Board remand and to afford the Veteran a new VA examination. The Veteran was afforded a telephonic VA Intestinal Surgery examination in September 2020, as an in-person examination was not feasible due to the global pandemic at the time. The examiner diagnosed the Veteran with a bowel obstruction. The examiner noted that the Veteran had a small bowel obstruction in 2013, resolved without surgery, and the Veteran had had no other episodes requiring hospitalization. The Veteran reported that his bowel movements were generally ok, with occasional episodes of blood on stool, which were painless, and that he had a colonoscopy and an endoscopy with no specific results. The Veteran also reported that he experienced solid stools and had bouts of diarrhea a few times a year that last a day or so. He also reported that prior to a bowel movement, his stomach has "pressure... cramping...upset," relieved by the bowel movement. The examiner noted that the Veteran's disability manifested with symptoms of abdominal distension and minimal bright red blood per rectum. The examiner also noted that the Veteran had occasional episodes of bowel disturbance with abdominal distress and that he experienced more than 7 episodes per year of exacerbations or attacks of the intestinal disability. In his March 2021 appellate brief, the Veteran contended that while he has only had one bowel blockage in 2013, he has grave concerns of the reoccurrence of the blockage. The Veteran again conceded that the blockage that caused his admission to a hospital in 2013 was cleared, but the cause of the blockage was not corrected. As previously noted, the Veteran's claim was remanded by the Board in April 2021. The claim was remanded to obtain a new VA examination, as the telephonic VA examination from September 2020 was conducted without imaging studies or diagnostic testing. This deficiency was explained in the remand itself, but not included in the remand directive. The Veteran was afforded another telephonic VA Intestinal Surgery examination in June 2021. The clinician indicated a telephonic examination was acceptable "because the existing medical evidence supplemented with an interview provided sufficient information on which to prepare the questionnaire and such an examination would likely provide no additional relevant evidence." The Veteran was diagnosed with a bowel obstruction. The examiner noted that the Veteran was diagnosed and treated conservatively for a single episode of a bowel obstruction in 2013. The examiner added that there had been no reoccurrence and no treatment for the bowel obstruction since 2013. The examiner noted that the Veteran's disability did not manifest with any signs or symptoms. The Board certainly recognizes the difficulty of scheduling in person examinations during the COVID-19 pandemic and that the pandemic has required an increase in telehealth visits. However, as noted in the April 2021 Board remand, the rating criteria for the Veteran's disability specifically address objective testing results which cannot be obtained via telehealth appointments. 38 C.F.R. § 4.114, Diagnostic Code 7301. Specifically, the remand noted: "Clearly, assessment of a bowel obstruction calls for use of an endoscopy, an MRI or, at a minimum, palpation by the examiner. Similarly, a determination at the rate that barium move through the digestive systems requires the physical interaction of having the veteran swallow the barium, or introduced rectally, and then observed by way of X-ray or MRI thereafter." Given the need for such diagnostic testing, it is unclear how the June 2021 examiner found that the existing medical evidence was sufficient to prepare the questionnaire. The clinician did not address any recent diagnostic testing and the Board is without the medical expertise to interpret such testing if it did exist. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). The Veteran's representative's October 2021 brief asserts the same deficiencies in the examination. As such, the Board finds that another remand is necessary so that attempts may be made to schedule the Veteran for an in-person examination to determine the severity of the Veteran's disability. The matter is REMANDED for the following action: 1. Schedule the Veteran for an in-person VA examination by an appropriate clinician, to include a gastroenterologist, to determine the current severity of the Veteran's bowel obstruction disability. The VA examiner is to perform any diagnostic imaging or testing deemed necessary. The clinician should specifically address any diagnostic testing, such as barium testing or x-ray imaging results and perform the testing if the Veteran's medical records do not contain the requisite information. I. M. Hitchcock Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. R. Montalvo, 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.