Citation Nr: 0000115 Decision Date: 01/04/00 Archive Date: 12/28/01 DOCKET NO. 97-24 253 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an increased evaluation for degenerative disc disease, L4-5, with disc space narrowing and spondylolysis, currently evaluated as 20 percent disabling. 2. Entitlement to service connection for a gastrointestinal disorder, claimed as secondary to the service-connected degenerative disc disease, L4-5, with disc space narrowing and spondylolysis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. McGovern, Associate Counsel INTRODUCTION The veteran had active service from May 1965 to May 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the November 1995 rating decision of the Roanoke, Virginia, Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to an evaluation in excess of 20 percent for service-connected degenerative disc disease, L4-5, with disc space narrowing and spondylolysis. This matter is also on appeal from the RO's April 1997 rating decision which denied entitlement to service connection for a gastrointestinal disorder, claimed as secondary to the service-connected degenerative disc disease, L4-5, with disc space narrowing and spondylolysis. FINDINGS OF FACT The evidence of record includes competent evidence which indicates that the veteran's heartburn is related to Motrin, a medication that the veteran has taken for treatment of his service-connected back disorder. CONCLUSION OF LAW The veteran's claim for service connection for a gastrointestinal disorder, claimed as secondary to his service-connected degenerative disc disease, L4-5, with disc space narrowing and spondylolysis, is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION The threshold question that must be resolved with regard to a claim is whether the veteran has presented evidence of a well-grounded claim. See 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). A well-grounded claim is a plausible claim that is meritorious on its own or capable of substantiation. See Murphy, 1 Vet. App. at 81. An allegation that a disorder is service connected is not sufficient; the veteran must submit evidence in support of a claim that would "justify a belief by a fair and impartial individual that the claim is plausible." See 38 U.S.C.A. § 5107(a); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Service connection may be granted for disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury suffered, or disease contracted, in the line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1999). Where a veteran served ninety days or more during a period of war or during peacetime service after December 31, 1946, and a peptic ulcer becomes manifest to a degree of ten percent within one year of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991 and Supp. 1998); 38 C.F.R. §§ 3.307, 3.309 (1999). This presumption is rebuttable by affirmative evidence to the contrary. Id. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). In order for a claim to be well grounded, there must be competent evidence of a current disability in the form of a medical diagnosis, of incurrence or aggravation of a disease or injury in service in the form of lay or medical evidence, and of a nexus between the in-service injury or disease and the current disability in the form of medical evidence. Caluza v. Brown, 7 Vet. App. 498 (1995). Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (1999). In the case of Allen v. Brown, 7 Vet. App. 439 (1995), the United States Court of Appeals for Veterans Claims (the Court) held that when a service-connected disability aggravates but is not the proximate cause of a nonservice-connected disability, the veteran is entitled to service connection for the portion of the severity of the nonservice-connected disability that is attributable to the service-connected disability. The record includes private treatment records which show that the veteran was treated for chronic low back pain and that he took medications for his low back disorder, including Naprosyn, Clinoril, Darvocet, Nuprin, and ibuprofen. January and February 1992 letters and records from Dr. D. Rice show that the veteran was treated primarily for his low back disorder. He was prescribed extra strength Tylenol, Darvocet, and Naprosyn for low back pain and Zantac was prescribed as an ulcerative protective measure. In July 1992, the veteran reported that Naprosyn helped with his low back pain but that it irritated his stomach. Naprosyn was discontinued due to stomach discomfort and he was started on Relafen. VA outpatient treatment records dated from April 1995 to January 1997 show that the veteran took ibuprofen, including Motrin, for treatment of his low back pain and that this bothered his stomach. The relevant assessments included stomach upset with Motrin, "? gastritis;" Motrin - heartburn without Cytotec; and heartburn. The treatment providers prescribed Cytotec, Mylanta, and Maalox. The veteran has used ibuprofen, including Motrin, for treatment of symptoms of his service-connected low back disorder. Current assessments include heartburn and treatment providers have indicated that the heartburn is related to the use of ibuprofen, including Motrin. Based on the aforementioned, the Board finds that the claim for service connection for a gastrointestinal disorder, claimed as secondary to medications taken for his service-connected low back disorder, is well grounded within the meaning of 38 U.S.C.A. § 5107(a). See 38 C.F.R. §§ 3.303, 3.310; Caluza; Allen. To that extent, the appeal is granted. As will be discussed in greater detail below, the Board finds that additional development is necessary and the issue of entitlement to service connection for a gastrointestinal disorder, claimed as secondary to the service-connected low back disorder, will be further addressed below in the remand portion of this decision. ORDER The claim for service connection for a gastrointestinal disorder, claimed as secondary to the service-connected degenerative disc disease, L4-5, with disc space narrowing and spondylolysis, is well grounded. REMAND The veteran asserts that he has a current gastrointestinal disorder which was caused or aggravated by the pain medications he takes for his service-connected low back disorder, including ibuprofen, Motrin, and Darvocet. Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310. As noted above, when a service-connected disability aggravates but is not the proximate cause of a nonservice- connected disability, the veteran is entitled to service connection for the portion of the severity of the nonservice- connected disability that is attributable to the service- connected disability. See Allen. As noted above, records dated from January to July 1992 from Dr. Rice show that the veteran was treated for his low back disorder; that he was prescribed extra strength Tylenol, Darvocet, and Naprosyn for low back pain; and that Zantac was prescribed as an ulcerative protective measure. Naprosyn was discontinued due to stomach discomfort and he was started on Relafen. Dr. Rice's letters include no relevant objective findings or diagnoses. April 1995 to January 1997 VA outpatient treatment records show that ibuprofen upset the veteran's stomach and that he had heartburn. The assessments included stomach upset with Motrin, "? gastritis;" Motrin - heart burn without Cytotec; and heartburn. He was prescribed Cytotec, Mylanta, and Maalox. These VA records show that he was treated for a left shoulder disorder with chronic pain and that he reported that he injured his left shoulder in August 1995. The treatment records show that he also took Motrin for his left shoulder disorder and that he was given steroid injections. The Board finds that a comprehensive VA gastrointestinal examination to determine the nature and etiology of any current gastrointestinal disorders would be instructive with regard to the appropriate disposition of the issue of entitlement to service connection for a gastrointestinal disorder, claimed as secondary to the service-connected low back disability. Littke v. Derwinski, 1 Vet. App. 90 (1990). With respect to the evaluation of the service-connected degenerative disc disease, L4-5, with disc space narrowing and spondylosis, the veteran has testified that this service- connected low back disorder has increased in severity since his last VA examination which was conducted in August 1995. The representative has asserted that consideration of functional impairment due to pain must be considered pursuant to 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The representative has requested that the veteran be afforded a VA examination to ascertain the current severity of the service-connected low back disability. Reexaminations will be requested when there is a need to verify the current severity of a disability, where there has been a material change in a disability, or when the current rating may be incorrect. 38 C.F.R. § 3.327 (1999). It is the opinion of the Board that contemporaneous and thorough VA orthopedic and neurological examinations should be obtained prior to deciding the issue of entitlement to an increased evaluation for degenerative disc disease, L4-5, with disc space narrowing and spondylosis. See Littke. In addition, the Board notes that a VA examination would materially assist in determining the extent of any functional loss due to pain or flare-ups. See DeLuca. The VA General Counsel has found that Diagnostic Code 5293 pertaining to intervertebral disc syndrome involves loss of range of motion and, as such, 38 C.F.R. §§ 4.40, 4.45 must be considered. VAOPGCPREC 36-97 (O.G.C. Prec. 36-97). Therefore, the examiners must assess functional loss that may result during flare-ups or repeated use over time. See DeLuca. The recent medical evidence indicates that the veteran has additional degenerative changes and disc space narrowing at L3-4, arthritis at L5-S1 and L4-5, and a bulging disc at L3-4 and L4-5. The RO must determine exactly which current low back disorders are service connected disabilities. The veteran has indicated that his service-connected low back disability hinders his ability to work. Therefore, the Board finds that the RO must address entitlement to an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) (1999). The veteran has reported that he continues to receive treatment at the Hampton, Virginia VAMC. As the most recent VA outpatient treatment records of record are dated in January 1997, an attempt to obtain all treatment records from the Hampton, Virginia VAMC dated from January 1997 to present is warranted. In order to ensure that the record is fully developed, this case is REMANDED to the RO for the following: 1. The RO should afford the veteran the opportunity to submit any additional evidence in support of his claims for an evaluation in excess of 20 percent for degenerative disc disease, L4-5, with disc space narrowing and spondylolysis, and for service connection for a gastrointestinal disorder, claimed as secondary to the service-connected low back disorder. After obtaining any necessary authorization, the RO should attempt to obtain all identified evidence that has not already been obtained. In any event, the RO should obtain all treatment records from the Hampton, Virginia, VAMC dated from January 1997 to present. 2. The RO should then afford the veteran a comprehensive gastrointestinal examination to determine the nature and etiology of any current gastrointestinal disorders. The claims folder and a separate copy of this remand should be made available to the examiner, the receipt of which should be acknowledged in the examination report. Any indicated studies should be performed. The examiner should report the veteran's history, all current complaints, and all examination findings in detail. The examiner should specifically identify any gastrointestinal pathology/disorders found and provide an opinion as to whether such is at least as likely as not related, by causation or aggravation, to the veteran's service-connected low back disorder or medications taken therefor. Any opinions expressed must be accompanied by a complete rationale. 3. The RO should then afford the veteran comprehensive orthopedic and neurological examinations to determine the current status of the service-connected degenerative disc disease, L4-5, with disc space narrowing and spondylolysis. The claims folder and a separate copy of this remand should be made available to the examiner(s), the receipt of which should be acknowledged in the examination report(s). Any indicated studies, including X-rays and magnetic resonance imaging scans, should be performed. The examiner(s) should report all current complaints and objective findings and provide a complete rationale for all opinions and conclusions rendered. Specific findings to be reported should include the following: a) The examiner(s) should report range of motion of the lumbosacral spine with an explanation of what constitutes normal range of motion. The examiner(s) should comment on any functional limitations, such as objective evidence of pain which further limits motion, in light of the provisions of 38 C.F.R. §§ 4.40, 4.45. With respect to the subjective complaints of pain, the examiner(s) are requested to specifically comment on whether pain is visibly manifested on movement of the lumbosacral spine, the presence and degree of, or absence of, muscle atrophy attributable to the service connected low back disability, the presence or absence of changes in condition of the skin indicative of disuse due to the service connected disabilities, or the presence or absence of any other objective manifestation that would demonstrate disuse or functional impairment due to pain attributable to the service- connected low back disability. The examiner(s) should also specifically comment on whether the veteran's subjective complaints are consistent with the objective findings. b) The orthopedic examiner should specifically report whether there is listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. c) The neurological examiner should note whether the veteran has symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or any other neurological findings appropriate to the site of the diseased disc; and the frequency and duration of any attacks. If possible, the examiner should comment on the severity of the manifestations based on the ability of the veteran to perform average employment in a civil occupation. If possible, the neurologic examiner should differentiate between neurologic disability attributable to diabetes and neurologic disability attributable to the service-connected low back disorder. 4. The RO should then review the record and ensure that the aforementioned development has been completed to the extent possible. See Stegall v. West, 11 Vet. App. 268 (1998). Any necessary additional development should be conducted. 5. The veteran's claims should then be readjudicated with consideration of all pertinent law, regulations, and Court decisions, including 38 C.F.R. §§ 3.321(b)(1), 3.310, 4.40, 4.45, 4.71a, Diagnostic Codes 5292, 5293, 5295; VAOPGCPREC 36-97; DeLuca; Allen. The RO should specifically note all current low back disorders and determine which low back disorders are service-connected disabilities. If the claims remain in a denied status, the veteran and his representative should be provided with a supplemental statement of the case which includes any additional pertinent law and regulations, particularly 38 C.F.R. §§ 3.321(b)(1), 4.40, 4.45, and a full discussion of action taken on the veteran's claims. The applicable response time should be allowed. This case should then be returned to the Board, if in order, after compliance with the customary appellate procedures. No action is required of the veteran until he is so informed. The Board intimates no opinion as to the ultimate decision warranted in this case, pending completion of the requested development. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. JANE E. SHARP Member, Board of Veterans' Appeals