Citation Nr: A26041010 Decision Date: 04/30/26 Archive Date: 04/30/26 DOCKET NO. 260106-621340 DATE: April 30, 2026 ORDER Entitlement to an initial compensable disability rating for irritable bowel syndrome (IBS) is denied. FINDINGS OF FACT 1. The evidence persuasively weighs against the finding that the appellant's IBS presented as moderate with frequent episodes of bowel disturbance with abdominal distress, or; with abdominal pain related to defecation at least once during the previous three months; and two or more of the following: (1) change in stool frequency, (2) change in stool form, (3) altered stool passage (straining and/or urgency), (4) mucorrhea, (5) abdominal bloating, or (6) subjective distension. 2. According to Merriam Webster's Collegiate Dictionary 999 (11th Ed. 2007), the Board of Veterans' Appeals (Board) finds the term "mild" to mean gentle in nature or temperate; the term 'moderate" to mean limited in scope or effect or average in amount, intensity, quality, or degree; and the term "severe" to mean very painful or harmful or of a great degree. CONCLUSION OF LAW The criteria for entitlement to an initial compensable disability rating for IBS are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.114, Diagnostic Code (DC) 7319. REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant served on active duty in the United States Army from June 2002 to December 2006. He is the recipient of the National Defense Service Medal, the Global War on Terrorism Service Medal, the Global War on Terrorism Expeditionary Medal, the Iraq Campaign Medal, and the Combat Infantryman Badge, among others. Procedural History This matter comes before the Board on appeal from a January 2025 Higher-Level Review (HLR) of an August 2024 rating decision. The January 2025 HLR rating decision granted entitlement to service connection for IBS, granting a noncompensable disability rating, effective October 13, 2022. VA received a timely January 2026 notice of disagreement (NOD) to the January 2025 HLR rating decision, selecting the Evidence Docket. Total Disability Rating for Individual Unemployability (TDIU) The issue of entitlement to TDIU takes its place as part of an increased disability rating claim where a claimant or the evidence reasonably raises the possibility that the relevant disability causes or contributes to a claimant's unemployability. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). TDIU has not been reasonably raised as part of the appellant's increased disability rating claim for IBS, either by the appellant or the record. Applicable Evidentiary Windows The Board may only consider the evidence of record before the AOJ at the time of its decision on the issue on appeal, as well as any evidence submitted by the appellant or his or her representative with the NOD (VA Form 10182) or within 90 days following receipt of the NOD. 38 C.F.R. §§ 20.300(a), 303. If additional evidence was submitted between the dates of the AOJ decision and VA's receipt of the NOD, the Board will not consider it unless it is resubmitted during the 90 days following VA's receipt of the NOD. If the appellant would like VA to consider any evidence that was added to the claims file that the Board could not consider, the appellant may file a supplemental claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a supplemental claim are included with this decision. See also Cook v. McDonough, 36 Vet. App. 175 (2023). Entitlement to an initial compensable disability rating for IBS is denied. The appellant contends that he is entitled to an initial compensable disability rating for his IBS. Applicable Law Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. §§ 4.7, 4.21. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. By reasonable doubt is meant on which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. 38 C.F.R. § 3.159(c)(2). Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. Id. The Board finds that the veteran is competent to report his symptoms and there is no evidence that his reports are not credible. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The appellant's IBS is assigned a noncompensable disability rating under 38 C.F.R. § 4.114, DC 7319. The provisions of 38 C.F.R. § 4.114, DC 7319, pertain to IBS. During the pendency of this appeal, VA amended the criteria for disabilities of the digestive system effective May 19, 2024. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Prior to May 19, 2024, under 38 C.F.R. § 4.114, DC 7319, for irritable colon syndrome, a 10 percent disability rating was warranted for moderate irritable colon syndrome with frequent episodes of bowel disturbance with abdominal distress. According to Merriam Webster's Collegiate Dictionary 999 (11th Ed. 2007), the Board finds the term "mild" to mean gentle in nature or temperate; the term 'moderate" to mean limited in scope or effect or average in amount, intensity, quality, or degree; and the term "severe" to mean very painful or harmful or of a great degree. Effective May 19, 2024, under 38 C.F.R. § 4.114, DC 7319 for IBS, a 10 percent disability rating is warranted for abdominal pain related to defecation at least once during the previous three months; and two or more of the following: (1) change in stool frequency, (2) change in stool form, (3) altered stool passage (straining and/or urgency), (4) mucorrhea, (5) abdominal bloating, or (6) subjective distension. Analysis The evidence of record includes an October 2022 VA treatment record in which the appellant stated he had alternating constipation and diarrhea with thick mucus in stools for several months. See VA Treatment Record, Primary Care Note, October 28, 2022. He explained that he used over-the-counter (OTC) medication without benefit and that he had occasional abdominal pain that would come and go. In November 2022, the appellant reiterated his October 2022 complaints, with the addition that he had inconsistent bowel patterns with mostly dry and hard stool with episodes of loose and mucusy stool. See VA Treatment Record, Gastroenterology Consult, November 30, 2022. He described the onset of occasional urgency and occasional stomach cramping with the urge for a bowel movement. A March 2023 VA treatment record largely echoed the November 2022 symptoms but added that the appellant denied nausea/vomiting, odynophagia, constipation, diarrhea, change in bowel habit, change in appetite, unintentional change in weight, and frank melena or hematochezia. See VA Treatment Record, Gastroenterology Note, March 6, 2023. In May 2023, the appellant participated in a VA examination of his IBS in which it was documented that the appellant did not use any medications in treating his disability and his current symptoms consisted of diarrhea three times a day. See VA Intestinal Conditions Disability Benefits Questionnaire (DBQ), May 8, 2023. The clinician noted the appellant did not have bowel disturbances with abdominal distress. A May 2024 VA examination of the appellant's intestinal issues determined there was no diagnosis of IBS. See VA Intestinal Conditions DBQ, May 24, 2024. The appellant reported his only symptom being diarrhea once or twice a day and that he did not currently take any medication to treat the issue. Prior to May 19, 2024, under the pre-amendment criteria, the evidence does not show the appellant had moderate IBS with frequent episodes of bowel disturbance with abdominal distress. The appellant explains that his primary symptom is diarrhea, with periodic instances of other symptoms. In October 2022, he describes occasional abdominal pain that comes and goes. See VA Treatment Record, Primary Care Note, October 28, 2022. In November 2022, periodic episodes of loose and mucusy stool are noted along with occasional urgency and stomach cramping. See VA Treatment Record, Gastroenterology Consult, November 30, 2022. The May 2023 VA examination noted there to be no bowel disturbances with abdominal distress and that the only symptom was diarrhea three times per day. See VA Intestinal Conditions DBQ, May 8, 2023. Such symptoms do not represent the manifestation of IBS with frequent episodes of bowel disturbance with abdominal distress. Instead, the disability picture is one primary consisting of diarrhea. Overall, the periodic nature of the appellant's symptoms makes the definition of mild, gentle in nature, more accurate than the definition of moderate, of average in amount, intensity, qualify or degree. Merriam-Webster's Collegiate Dictionary 267 (11th ed. 2012). After May 19, 2024, the post-amendment criteria requires the evidence to show moderate IBS with frequent episodes of bowel disturbance with abdominal distress or abdominal pain related to defecation at least once during the previous three months; and two or more of the following: (1) change in stool frequency, (2) change in stool form, (3) altered stool passage (straining and/or urgency), (4) mucorrhea, (5) abdominal bloating, or (6) subjective distension. As such, the pre-amendment criteria are more favorable to the appellant and shall be applied in the instant case. However, the appellant's May 2024 VA examination noted his only symptom was diarrhea one to two times per day. See VA Intestinal Conditions DBQ, May 24, 2024. No evidence suggests frequent episodes of bowel disturbance with abdominal distress or abdominal pain related to defecation. These findings do not entitle the appellant to a compensable disability rating under either the old or new criteria. The appellant is competent to describe the manifestations that he reported related to his IBS, and these assertions are considered credible and of significant probative value as they are supported by the medical evidence of record. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). However, the descriptions do not meet the criteria for a higher disability rating. To the extent that medications are not contemplated by the rating criteria, the adjudicator must assess the effects of the medications and determine the severity of the symptoms in the absence of medications. See Jones v. Shinseki, 26 Vet. App. 56, 61(2012); Ingram v. Collins, No. 23-1798. The pertinent rating criteria for the appellant's service-connected IBS, does not contemplate the use of medication. See 38 C.F.R. § 4.114. However, the appellant does not indicate more than sporadic use of OTC medication without benefit. As such, the effects of such medication need not be set aside. In summary, entitlement to a compensable disability rating for IBS is not warranted. K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lee N. Feldman, 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.