Citation Nr: 21009838 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 15-31 453A DATE: February 23, 2021 REMANDED Entitlement to a rating in excess of 20 percent for Gilbert's disease with history of hepatitis is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1982 to June 1985. The Veteran’s claim was previously before the Board in August 2018. At that time, the Veteran’s claim was remanded for additional development. The Board determined that the regional office (RO) had not provided a supplemental statement of the case (SSOC) considering all of the relevant evidence. In September 2019, the RO complied with the Board’s remand instructions and denied the Veteran’s claim in a September 2019 SSOC. As such, the claim is before the Board once again. While the Board regrets the additional delay, it appears that the Veteran’s claim must be remanded once again. 1. Entitlement to a rating in excess of 20 percent for Gilbert's disease with history of hepatitis is remanded. The Veteran contends that his service-connected condition warrants a higher rating than is currently assigned. Turning to the evidence of record, in March 2011, the Veteran was examined by a VA examiner. The Veteran reported that he continued to have right or left mid abdominal twinges about 4 times per week, lasting minutes. In the last 12 months the Veteran reported that he had not lost any time from work due to his disability. The examiner diagnosed the Veteran with nonspecific abdominal wall pain of unclear etiology. In a March 2011 statement, the Veteran reported that he suffered from abdominal pain for over 26 years, and suffered 3 to 4 episodes a week which he treated with over the counter pain medicine. In September 2012, the Veteran submitted authorization documents for medical records from his personal physician, Dr. J.V. and his gastroenterologist Dr V.F. Records from Dr. V.F. confirm the Veteran’s long history of gastrointestinal issues, with noted constipation. In a September 2010 medical note Dr. V.F. confirmed that the Veteran was seen on an emergency visit due to diarrhea. She opined that the Veteran likely had viral gastroenteritis, and that he had not been able to work due to the frequency of his bowel movements. In a December 2013 letter from Dr. J.V., she wrote that the Veteran was a patient at her office for 17 years, and had complained of bi-sided abdominal pain dating back to his time in the military nearly 30 years ago. In August 2015, the Veteran underwent a VA examination. The Veteran complained of abdominal bloating and fatigue and reported constipation for years including numerous negative GI work ups. He also reported that he had mild to moderate pain and fatigue daily. The examiner noted that the Veteran currently had signs attributable to his disability, namely daily fatigue. The examiner indicated that the Veteran did not suffer from any incapacitating episodes due to his liver condition during the last 12 months. The Veteran did not currently have any signs or symptoms attributable to cirrhosis of the liver, biliary cirrhosis, or cirrhotic phase of sclerosing cholangitis. There were no other pertinent physical findings, complications, conditions, signs or symptoms related to any of the Veteran’s diagnosis. In the remarks section, the examiner noted that the Veteran noted a CT scan showing an enlarged spleen. In addition, the Veteran reported increasing pain and fatigue daily and moderate note. The Veteran linked his symptoms to nonspecific hepatitis. Following this VA examination, in July 2017, the RO sought clarification with regard to certain findings in the examination report from the examiner who conducted the August 2015 VA examination. Specifically, the RO requested more information regarding the type of pain and bloating the examiner was referring to when he noted that the Veteran had increasing pain: abdominal pain, occasional episodes of colic pain, pulling pain aggravated by movements of the body, pulling pain on attempting work, or right upper quadrant pain. The RO further inquired whether the Veteran’s complaints of abdominal bloating was in reference to occasional episodes of abdominal distension or frequent and prolonged episodes of severe colic distension. In response, in a July 2017 correspondence, the examiner provided the requested clarification of the August 2015 VA examination report. The examiner explained that in regard to increasing pain, such would be best described as occasional episodes of colic pain. In regard to abdominal bloating, such would be best described as occasional episodes of abdominal distension. In a September 2017 medical note, the Veteran reported a history of chronic upper abdominal wall pain with a 3 out of 10 in severity since his episodes of hepatitis in 1985. The Veteran described the pain as throbbing, stating that the pain is there all the time and nothing in particular brings it on. In the Veteran’s November 2018 vocational rehabilitation and employment application, he wrote that he was constantly experiencing fatigue, and had moved his family to New Mexico in November 2016 in hopes that the weather would help his condition. In an April 2019 primary care note, the Veteran reported chronic low energy, reporting that he wakes up rested but not having much energy. He reported that sometimes his abdominal pain can be a 6 out of 10. In a June 2019 GI consult medical note, the Veteran reported abdominal pain and constipation. He reported bilateral abdominal pain for years, rated at a 3-8 constant pain that is mainly a 3 and is sharp. He also reported some bloating. In the Veteran’s September 2019 Form 9, he reported that he had pain, malaise, and fatigue for many years dating back to his discharge in 1985. He reported how at times he could not function properly and perform day to day tasks, which has affected his life and career in ways he could not begin to describe. In the Veteran’s October 2020 Appellate Brief, he argued, through his representative, that his August 2015 VA examination was too old to determine the level of his disability, and that his condition had worsened since that time. Where a veteran asserts that a disability has worsened since his last VA examination, and the last examination is too remote to constitute a contemporaneous examination, a new examination is required. See 38 U.S.C.A. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); see also Snuffer v. Gober, 10 Vet. App. 400 (1997). The Board finds that the Veteran has reported on occasions since August 2015 that his condition is more severe than it was at that time. In addition, his August 2015 VA examination is approximately 6 years old. Since that time, the Veteran has seen his private physician and continued to provide lay statements which indicate that his condition is worse than it was at the time of his prior VA examination. Notably, in the Veteran’s September 2019 statement, he reported that he could no longer function properly and perform day to day tasks, which had negatively affected his life and career. In order to properly adjudicate the Veteran’s claim, the current severity of the Veteran’s condition must be determined. As such, the Veteran’s claim must be remanded once again. The matters are REMANDED for the following action: 1. Obtain a VA opinion from an appropriate clinician to determine the current severity of his service-connected Gilbert’s disease disability. An examination may be scheduled if the clinician deems it necessary, and may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The record and a copy of this Remand must be made available to the examiner. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of the Veteran’s symptoms related to his disability. To the extent possible, the examiner should identify any functional impairments due to the Veteran’s Gilbert’s disease and related abdominal pain, including impact on any occupational functioning and activities of daily living. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Vosburgh, 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.