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BVA provided inadequate reasons as to how Veteran’s conditions were contemplated by IBS rating

BVA provided inadequate reasons as to how Veteran’s conditions were contemplated by IBS rating

Summary

The Veteran served on active duty in the United States Army from August
1972 to May 1974.  He served again from December 1990 through 1991.  Mr. Lane filed a claim for service connection for his irritable bowel syndrome (IBS) in February 2006.  In a September 2006 rating decision, the Veteran was granted a 10% evaluation for his IBS effective March 16, 2006.  The Veteran filed a timely notice of disagreement in response to the decision.

The VA continued his 10% rating in a January 2008 Statement of the Case, and the Veteran  appealed the next month.  In a January 2013 rating decision, the Veteran’s IBS was increased to 30% effective March 6, 2012.  Following further RO action, the Board, in an August 4 2015 decision, granted the Veteran a 30% rating for his IBS for the entire period on appeal.

 

Board denies referral for extraschedular rating stating Veteran’s IBS symptoms  were contemplated assigned 30 percent rating

The August 4, 2015 decision resulted in a joint motion for partial remand where the parties agreed the Board provided an inadequate statement of reasons or bases for its decision to deny referral for an extraschedular rating for his IBS.  Specifically, the Board acknowledged the Veteran’s other symptoms of his IBS included vomiting, nausea, pain, and sleeplessness.  However, they  determined that they were all contemplated by his severe 30% rating.

 

CCK appeals to the Court

CCK successfully appealed to the Court the denial of an increased rating for the Veteran’s IBS on an extraschedular basis.  In its decision, the Board found all of the Veteran’s symptoms were contemplated by his assigned rating.  The Board also found that the collective impact of all of the Veteran’s service-connected disabilities were not more severe than when the conditions were considered separately.

 

CAVC agrees with CCK’s arguments

CCK argued, and the Court agreed, that the Board erred when it found that all of the Veteran’s symptoms were contemplated by his 30% IBS rating.  The Court decided that diagnostic code 7319 does not mention nausea.  Furthermore, nausea is not listed as a symptom in the medical definition of IBS.  The Court also decided the Board did not address Mr. Lane’s vomiting or pain. In addition, the Board failed to explain whether they are symptoms contemplated by the rating schedule.

The Board’s failure to address these issues renders its statement of reasons or bases inadequate and warrants remand.  The Court also found that the Board erred when it found that the collective impact of all of the Veteran’s service-connected disabilities was not more severe than when they were considered separately.  The Board thus failed to address the relevant evidence.  It also neglected to explain why the combination of these effects did not suggest an unusual or exceptional disability picture.  The Court set aside the Board’s decision and remanded the matter for further proceedings.

Click here to read the Court’s decision.

Category: Court Wins

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