Citation Nr: 22008047 Decision Date: 02/11/22 Archive Date: 02/11/22 DOCKET NO. 16-08 629 DATE: February 11, 2022 ORDER An initial compensable rating for irritable bowel syndrome prior to September 9, 2021, and in excess of 20 percent, thereafter, is denied. REMANDED Entitlement to service connection for a headache disorder, claimed as cephalgia, to include as secondary to service-connected bilateral knee disabilities and non-service-connected neck and low back disorders, is remanded. Entitlement to service connection for a neck disorder, to include as secondary to service-connected bilateral knee disabilities and a non-service-connected low back disorder, is remanded. Entitlement to service connection for a low back disorder, to include as secondary to service-connected bilateral knee disabilities, is remanded. FINDINGS OF FACT 1. Prior to September 9, 2021, the Veteran's irritable bowel syndrome was not shown to be symptomatic with diarrhea, anemia, and the inability to gain weight. 2. Since September 9, 2021, the Veteran's irritable bowel syndrome was not shown to be characterized by definite interference with absorption and nutrition, manifested by impairment of health objectively supported by examination findings including definite weight loss. CONCLUSION OF LAW The criteria for an initial compensable rating for irritable bowel syndrome prior to September 9, 2021, and in excess of 20 percent, thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 7328 REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1976 to November 1979. These matters return to the Board of Veterans' Appeals (Board) following the issuance of an April 2021 Board remand which directed the Regional Office (RO) to undertake additional development. Increased Ratings Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In any increased rating claim, different ratings can be assigned for different periods of time in a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). Importantly, in every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. 1. An initial compensable rating for irritable bowel syndrome prior to September 9, 2021, and in excess of 20 percent thereafter The Veteran is seeking an initial compensable rating for his irritable bowel syndrome prior to September 9, 2021, and rating in excess of 20 percent thereafter. After a review of the record, the Board finds that higher ratings are not warranted for either period on appeal. During both periods on appeal The Veteran's irritable bowel syndrome is rated under Diagnostic Code (DC) 7328 (addressing resection of the small intestine). For the period prior to September 9, 2021, the Veteran is assigned a noncompensable rating under DC 7328, in the period thereafter he is assigned a 20 percent rating under the same DC. Under DC 7328, a 20 percent rating is given when the condition is symptomatic with diarrhea, anemia and inability to gain weight. A 40 percent rating is given when there is definite interference with absorption and nutrition, manifested by impairment of health objectively supported by examination findings including definite weight loss. 38 C.F.R. § 4.114 at DC 7328. Prior to September 9, 2021 The Veteran's medical records from the period prior to September 9, 2021, including private treatment notes from a Doctor P.J.Y. indicate that the Veteran experienced symptoms of diarrhea, cramping, nausea, urgency, and near syncope, there was no indication that he experienced anemia or the inability to gain wight. There is no further evidence that is available, including any submitted by the Veteran, which would indicate that his IBS symptoms were compensable during the period prior to September 9, 2021. In consideration of the above, the Board finds that the severity of the Veteran's service-connected abdominal disability most nearly approximates the noncompensable rating for the period prior to September 9, 2021. As noted above, at no point has the Veteran during this time period demonstrated that he his symptoms are characterized by diarrhea, anemia, and/or an inability to gain weight. These represent the minimum threshold requirements for a compensable disability rating of 20 percent under DC 7328. Again, the Board is reminded that in every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. As a result, the Board finds that the symptomatology of the Veteran's service-connected abdominal disability more nearly approximates a noncompensable evaluation for the period prior to September 9, 2021, as the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. The Board has also considered other ratings criteria and found that there is no basis to assign an alternative evaluation for the Veteran's abdominal disability other than that discussed above. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991) Since September 9, 2021 To begin, the Board notes that in a rating decision from November 2021, the RO increased the Veteran's disability rating for the service-connected abdominal disability to 20 percent, effective September 9, 2021, the date on which the Veteran's symptoms were observed to have increased in severity. Turning to the available evidence, the Veteran was provided with a VA examination in September 2021. The Veteran was seen in person, and his claims file was reviewed. The examiner confirmed the Veteran's diagnosis and noted the Veteran's lay statements that he treats his IBS with a combination of Lomotil and regular appointments with a digestive disease specialist. The Veteran indicted that his symptoms had lately worsened, including urgency. During the exam, the only symptom noted attributable to the Veteran's diagnosis was diarrhea. Other symptoms, such as diarrhea, anemia and nausea were not mentioned. The Veteran did not have weight loss, nor an inability to gain weight that was attributable to his IBS. There was also no interference with the Veteran's absorption and nutrition attributable to his disability. No further medical abnormalities were noted, including any impairment of health objectively. There are no further medical records during this period which indicate an increased severity of the Veteran's IBS symptoms. Further, the Veteran has not stated that his disability has increased in severity nor has he submitted any additional medical evidence for this period, including private opinions or medical records. In consideration of the above, the Board finds that the severity of the Veteran's service-connected abdominal disability most nearly approximates the current 20 percent rating for the period on appeal from September 9, 2021. At no point has the Veteran's service-connected IBS been manifested by symptoms required for the higher 40 percent rating. His symptoms have not been characterized as showing a definite interference with absorption and nutrition, manifested by an impairment of health which is objectively supported by examination findings including definite weight loss. As a result, the Board finds that the symptomatology of the Veteran's service-connected abdominal disability more nearly approximates the current 20 percent disability rating for the period from September 9, 2021, and the preponderance of the evidence is against a finding that he is entitled to the higher 40 percent disability rating. The Board has also considered other ratings criteria and found that there is no basis to assign an alternative evaluation for the Veteran's abdominal disability other than that discussed above. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Conclusion Accordingly, the evidence is persuasively against the claims for higher ratings for the Veteran's IBS during both periods on appeal. As such, the benefit of the doubt rule is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's appeals are denied. 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. REASONS FOR REMAND 1. Entitlement to service connection for a headache disorder, claimed as cephalgia, to include as secondary to service-connected bilateral knee disabilities and non-service-connected neck and low back disorders, is remanded. 2. Entitlement to service connection for a neck disorder, to include as secondary to service-connected bilateral knee disabilities and a non-service-connected low back disorder, is remanded. 3. Entitlement to service connection for a low back disorder, to include as secondary to service-connected bilateral knee disabilities, is remanded. The Veteran is seeking service connection for a headache disorder, a neck disorder, and a low back disorder. The Veteran asserts that these disorders are interrelated, in that his headache disorder is related to neck and low back disorders; and his neck and low back disorders are related to his bilateral knee disabilities. The Veteran was provided with VA examinations in October and November 2021 to evaluate the nature and etiology of the Veteran's claimed disorders. The examiner for the Veteran's headache disorder noted that they could not endorse a diagnosis for the Veteran of a headache disorder. The examiner wrote that the Veteran's symptoms were wholly subjective, however, the Board finds this description to be problematic, as headache pain would be reported subjectively. Moreover, in discussing secondary service connection, the examiner only spoke about the Veteran's left knee disorder in relation to his headaches and did not discuss the possibility that the Veteran's headaches may be related to his neck and low back disorders, which may in turn be related to his knee disabilities. Next, the examiner for the Veteran's neck disorder, also found no basis for a diagnosis of a neck disorder. However, the examiner did note that the Veteran suffered functional loss, in terms of range of motion due to his reported neck symptoms. The lack of a diagnosis alone does not preclude the finding of a current disability. See Saunders v. Wilkie, 886 F.3d 1356 (2018) (holding that pain alone may constitute a disability when it reaches the level of a functional impairment of earning capacity.). Additionally, the examiner did not discuss the Veteran's contentions that his neck disorder is related to his knee disabilities by way of his low back disorder. Moreover, the Veteran stated that during service he was involved in a motor vehicle accident, this was not discussed further by the examiner. Finally, the examiner who performed the Veteran's low back examination, similarly noted a lack of a formal diagnosis. At the same time, however, the examiner noted that the Veteran experiences functional loss due to his reported low back symptoms. This by itself necessitates a remand under Saunders. See Saunders v. Wilkie, 886 F.3d 1356 (2018). Furthermore, the examiner did not discuss the Veteran's claims that his low back disorder may be secondary to his bilateral knee disabilities and instead noted the lack of diagnosis. For the above discussed reasons, the Board finds that a remand is necessary so that the RO may obtain addendum opinions to remedy the deficiencies in the prior examinations, or in the alternative new examinations. The matters are REMANDED for the following action: 1. Invite the Veteran to submit any evidence in support of his claims. 2. Obtain from the previous examiners, addendum opinions regarding the Veteran's service connection claims for a headache disorder, neck disorder, and low back disorder. a. For the Veteran's low back and neck disorders, the examiners should rule in or rule out any diagnosable disorder. If no diagnosis is endorsed, the examiner should provide an etiological opinion as to whether or not the claimed disorder causes pain with functional limitation, and if so, if the pain is etiologically related to the Veteran's period of service, including his in-service motor vehicle accident, or as secondary to his bilateral knee disabilities. When considering secondary service connection, the examiners are remined that they need to discuss both cause and aggravation (beyond the natural course). b. For the Veteran's headache disorder, the examiner should rule in or rule out any diagnosable disorder. If no diagnosis is endorsed, the examiner should provide an etiological opinion as to whether or not the claimed disorder causes pain with functional limitation, and if so, if the pain is etiologically related to the Veteran's period of service, including as secondary to any service-connected disability. c. The entire claims file should be made available to the examiner and they should complete a review of it. All indicated studies deemed necessary by the examiners should be performed, and all findings of these tests should be reported in detail. All opinions must be accompanied by adequate reasons and bases. If the examiner cannot provide the requested opinion without resorting to mere speculation, he or she should provide a complete explanation stating why this is so. In so doing, the examiners should explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). If it is deemed necessary by any examiner, that an in-person examination for any of the disorders subject to this remand order be obtained, the RO should schedule those examinations. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Hernan, Attorney Advisor