BVA errs in relying on 7 year old IBS exam
This case had multiple errors in it. One of the major errors was the BVA treatment of the client's Irritable Bowel Syndrome (IBS).
The Veteran initially had an exam in 2009 to rate his service-connectedIrritable Bowel Syndrome (IBS). By the time this appeal found its way to the BVA Veterans Law Judge's desk for a decision, 7 years had passed (the BVAdecision was issued in February 2016).
The question became whether a 7 year old medical exam rating Irritable Bowel Syndrome (IBS) was relevant to rating the veteran in 2016.
Typically, the VA OGC does not like to remand BVA decisions that rely on exams - no matter how old - unless the veteran alleges a worsening of symptoms, in this case, worsening of his Irritable Bowel Syndrome (IBS).
They frequently rely on a particular case to find that the mere passage of time does not justify a new exam. Palczewski v. Nicholson, 21 Vet.App. 174, 182-83 (2007). However, when a veteran tells the VA and BVA that his condition is worsening, that old exam suddenly needs updating.
The Palczewski decision is ripe for a challenge, Attig | Steel would be willing to review your BVA decision, if you have an appealable BVA decision in which the BVA relied on a 3-5+ year old exam to rate your condition .
In this case, the Veteran's VA treatment records for Irritable Bowel Syndrome (IBS) show had several worsening symptoms (including diarrhea and constipation) multiple times per week. He stated his Irritable Bowel Syndrome (IBS) symptoms were “frequent, persistent, and a major source of agony . . . [that] affects his daily living.”
On this, and other errors, we were able to secure a remand which vacated the BVA decision and sent it back to the BVA and/or Houston VA Regional Office for a new C&P rating exam for the veteran's Irritable Bowel Syndrome (IBS).
Does this case sound like your VA Rating Decision or BVA Decision? If so, click here to have Attig | Steel take a look at your case.
Link to the BVA Decision on CAVC Website.
Link to the Joint Motion to Remand the CAVC Website.
OGC Attorney: Abigail J. Schopick
Veteran Representation at CAVC: Chris Attig (link to bio)
Board of Veterans Appeals Veterans Law Judge: J. Parker
Regional Office: Houston, Texas VARO
Vets’ Rep at BVA: DAV
Date of BVA Decision: February 18, 2016
Date of CAVC Judgment on Remand: December 13, 2016