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Irritable Bowel Syndrome (IBS) Denial Fails to Explain Meaning of Rating Criteria

May 21, 2019
Court Win- Increased Rating

Summary of the Case

The Veteran served honorably in the United States Air Force from November 1988 to November 2008.  Sadly, he passed away after his appeal began and his spouse was substituted in as the appellant.  She is challenging a June 2017 Board decision that denied an initial disability rating greater than 10 percent for the Veteran’s service-connected irritable bowel syndrome (IBS) before January 2016, and greater than 30 percent thereafter.

In September 2008, the Veteran filed an initial claim for service connection for IBS.  His pre-discharge examination noted six to seven loose bowel movements per day, use of Imodium two to three times per week, bloating, frequent flatus, and cramps.  In January 2009, a Rating Decision granted the Veteran service connection for IBS and assigned a 10 percent disability rating effective December 2008.  He continued to appeal to the Board of Veterans’ Appeals.

In June 2011, the Veteran attended a Board hearing in which he reported the following as related to his IBS: problems with eating, indigestion, restroom use three to four times per day, leakage, constipation, diarrhea, and an impact on daily life and employment.  Three years later, the Board remanded the Veteran’s increased rating claim for a new examination.  At a January 2016 VA examination, the Veteran indicated again that he experienced fecal incontinence, accidents, and leaks through clothing at least once a day, the need to wear protective clothing, and the need to leave work and go home to change because of accidents.  A February 2016 Rating Decision granted an increased rating for the Veteran’s IBS and assigned a 30 percent disability rating effective January 2016.  The Veteran appealed this decision to the Board.

Board Denies Increased Rating for Irritable Bowel Syndrome (IBS)

In June 2017, the Board issued a decision that denied entitlement to an initial disability rating greater than 10 percent for IBS prior to January 2016, and in excess of 30 percent thereafter.  In its decision, the Board determined that the evidence of record demonstrated that the Veteran experienced “frequent episodes of bowel disturbance”, consistent with the 10 percent evaluation criteria, but not “more or less constant abdominal stress”, which is required at the 30 percent level.

CCK Appeals Increased Rating for IBS to the CAVC

CCK successfully appealed to the Court of Appeals for Veterans Claims (CAVC) the Board decision that denied increased ratings for the Veteran’s IBS both prior to January 2016 and thereafter.  CCK argued that the Board erred when it failed to explain what it understood certain phrases in the rating criteria at issue to mean.  Specifically, IBS is rated under 38 CFR § 4.114, Diagnostic Code 7319 and the Board concluded that the Veteran’s symptoms more nearly approximated those for a 10 percent rating before January 2016 and 30 percent thereafter.  However, it did not support its determinations with adequate reasons or bases.

Court Agrees with CCK’s Arguments, Remands Veteran’s Case

CCK argued, and the Court agreed, the Board did not explain what it understood the phrases “frequent episodes of bowel disturbance” and “more or less constant abdominal stress” to mean.  Rather, the Board only indicated that symptoms such as those the Veteran displayed, including as many as six to seven loose stools per day, bloating, cramps, frequent flatus, and fecal leakage, do not meet the higher threshold.  The Board did not provide reasons or bases for this determination, and did not indicate what would qualify for the higher rating.  The Court determined that the Board’s failure to explain what it understood the critical regulatory phrases to mean constitutes a legal error.  On remand, the Board must explain what it understands the words and phrases set forth in the relevant Diagnostic Code to mean so that the appellant will understand why the Veteran was rated in that way.

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