Citation Nr: 0310420 Decision Date: 05/30/03 Archive Date: 06/02/03 DOCKET NO. 00-21 001 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for right shoulder disability claimed as secondary to service connected musculoskeletal disability. 2. Entitlement to service connection for gastroesophageal reflux disease (GERD) claimed as secondary to use of non- steroidal anti-inflammatory drugs (NSAIDs) for treatment of service connected musculoskeletal disability. 3. Entitlement to service connection for irritable bowel syndrome (IBS) claimed as secondary to use of NSAIDs for treatment of service connected musculoskeletal disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION The veteran served on active duty from March 1944 to December 1944. This case comes before the Board of Veterans' Appeals (Board) on appeal from separate rating decisions by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). In an August 1999 rating decision, the RO denied a claim for service connection for GERD and IBS as secondary to medication prescribed for service connected disability of the lumbar spine. A September 2001 RO decision denied a claim for service connection for degenerative joint disease of the right shoulder as secondary to service connected right knee disability with osteomyelitis of the right leg. In September 2002, the veteran testified at a travel board hearing chaired by C.W. Symanski who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7102(b), and who is the Veterans Law Judge responsible for making a final determination in this case. The veteran's claim for service connection for right shoulder disability as secondary to service connected musculoskeletal disability is addressed in the remand following this decision. FINDING OF FACT The veteran's NSAID use as treatment for service connected musculoskeletal disabilities results in additional impairment of her IBS and GERD disabilities. CONCLUSIONS OF LAW 1. Irritable bowel syndrome is proximately due to use of NSAIDs for treatment of service connected musculoskeletal disabilities. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.310(a) (2002). 2. Gastroesophageal reflux disease is proximately due to use of NSAIDs for treatment of service connected musculoskeletal disabilities. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.310(a) (2002). REASONS AND BASES FOR FINDING AND CONCLUSIONS The veteran contends that she is entitled to service connection for GERD and IBS as secondary to medication prescribed for service connected musculoskeletal disabilities. Briefly summarized, she has been service connected for lumbosacral spine disability as well as injury to the right knee superimposed on pre-existing deformity of the right lower extremity since her discharge from service in 1944. Incidentally, her service medical records also reflect some complaint of gastrointestinal (GI) symptoms with no objective evidence of disability. Post-service, the veteran's clinical records document a long- standing history of treatment for her service connected chronic strain in the lumbosacral area, and deformity of the right leg with increased genu varum and shortening. She also voiced various GI complaints which, according to a June 1961 VA inpatient record, were diagnosed as colitis in the 1950's. In August 1977, an upper GI series performed at The Cape Coral Hospital first reflected impressions of possible esophagitis, deformed duodenum indicating a chronic ulcer, and increased peristalsis compatible with irritable bowel. In pertinent part, her VA clinical records include a June 1987 reference to her being unable to tolerate medications for her lumbar spine disability. In the 1990's, she was being prescribed "NSAIDs" due to her service connected lumbosacral spine disability. On VA stomach examination in June 1998, the veteran's complaints of swallowing difficulty, reflux symptoms and lower bowel dysfunction resulted in diagnoses of IBS and GERD with history of mild esophageal stricture. In an addendum, the VA examiner provided the following opinion regarding the etiological relationship between her GI symptoms and use of NSAIDs: Cause of irritable bowel syndrome and GERD unrelated to the service or medication. However, her use of NSAID does worsen her symptoms. It is impossible to differentiate baseline manifestation. (emphasis added). Thereafter, a February 2000 VA clinical record noted that the veteran was on the "max amount of NSAIDS she can tolerate, is having stomach trouble precluding steroid use." In May 2000, a VA clinician changed her prescription to Tolmetin by noting that she could "tolerate this better than NSAIDs." In September 2002, the veteran testified to long-term use of NSAIDs to treat her service connected musculoskeletal disabilities, and voiced her belief that the NSAIDs caused her to manifest GI symptom side effects. In support of her contentions, her representative referred to the Physician's Desk Reference (PDR) which noted that side effects from NSAIDs included GI symptoms. At that time, the veteran submitted documentation indicating that Tolectin (a.k.a., Tolmetin) is an oral NSAID. One of the most common side effects of the medication was noted to be stomach upset. Service connection is established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during periods of active military service. 38 U.S.C.A. § 1110 (West 2002). Service connection may be established on a secondary basis for disability which is proximately due to or the result of a service connected disease or injury. See also 38 C.F.R. § 3.310(a) (2002). The Court of Appeals for Veterans Claims has construed this provision as entailing "any additional impairment of earning capacity resulting from an already service connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service connected condition." Allen v. Brown, 7 Vet. App. 439, 448 (1995). Establishing service connection on a secondary basis essentially requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service connected disability. Id. The veteran bears the burden of presenting and supporting his claim for benefits. 38 U.S.C.A. § 5107(a) (West 2002). In its evaluation, the Board shall consider all information and lay and medical evidence of record. 38 U.S.C. § 5107(b) (West 2002). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id. VA has defined competency of evidence as follows: "(1) Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. (2) Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. 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." 38 C.F.R. § 3.129(a) (2002). The veteran contends that her use of NSAIDs as treatment for her service connected musculoskeletal disabilities results in additional disabilities of IBS and GERD. She has testified to long-term NSAID use which is reflected, in part, in her VA clinical records. She also complains of an intolerance to NSAIDs and, indeed, has been prescribed different NSAIDs to lessen the side effects. Opinion from a VA examiner in 1998 indicated that the veteran's IBS and GERD were not caused by her NSAID use. Nonetheless, the examiner was unequivocal in stating that her IBS and GERD symptoms were worsened due to her NSAID use, but that the extent of worsening was not ascertainable. As noted by the Allen court, secondary service connection for a disability only requires evidence that a service connected disability results in "an additional impairment of earning capacity." Allen, 7 Vet. App. at 448. There is competent evidence of record that the veteran's NSAID use for service connected musculoskeletal disability is causing additional IBS and GERD symptoms. Resolving reasonable doubt in favor of the veteran, the Board finds that the veteran's NSAID use for service connected musculoskeletal disabilities results in additional impairment of her IBS and GERD disabilities. 38 U.S.C.A. § 5107(b) (West 2002). Cf. Mittleider v. West, 11 Vet. App. 181 (1998) (When it is not possible to separate the effects of the service-connected condition versus a nonservice-connected condition, an application of the reasonable doubt doctrine attributes such signs and symptoms to the service-connected disability). Therefore, the Board grants service connection for IBS and GERD as secondary to use of NSAIDs for treatment of service connected musculoskeletal disabilities. ORDER Service connection for IBS as secondary to use of NSAIDs for treatment of service connected musculoskeletal disabilities is granted. Service connection for GERD as secondary to use of NSAIDs for treatment of service connected musculoskeletal disabilities is granted. REMAND The Board notes that there has been a significant change in the law during the pendency of this appeal. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act (VCAA) of 2000. In pertinent part, this law redefines VA's notice and duty to assist requirements. See 38 U.S.C. §§ 5102, 5103, 5103A, and 5107 (West Supp. 2001). The Court has emphasized that the provisions of 38 U.S.C.A. § 5103 impose new notice requirements on the part of VA. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). With respect to the claim for service connection for degenerative joint disease of the right shoulder claimed as secondary to service connected disability, the veteran has not been provided notice which complies with the requirements of 38 U.S.C.A. § 5103. Accordingly, the Board remands this case to the RO for compliance with the section 5103 obligations. A further review of the record reflects the veteran's treatment for right shoulder pain, variously diagnosed as cervical brachial syndrome of the neck and right shoulder as well as degenerative joint disease of the right shoulder, prior to her use of a cane for service connected musculoskeletal disabilities. However, VA examination has confirmed a 1 1/2" shortening of her service connected right leg causing instability of gait with secondary bursitis of the right hip. While there is competent opinion that her cane use did not result in degenerative joint disease of the right shoulder, the record does not include medical opinion as to whether the veteran's use of a cane for service connected disability results in any additional impairment of her right shoulder disability. The Board finds that there is insufficient medical evidence of record to make a decision on the claim, and that medical opinion as to whether veteran manifests any additional impairment of the right shoulder disability due to use of a cane for service connected disability is required. 38 U.S.C.A. § 5103A(d) (West 2002). Accordingly, this case is REMANDED to the RO for the following actions: 1. The RO should provide the veteran notice which satisfies the provisions of 38 U.S.C.A. § 5103. The RO must also review the claims file and ensure that all notification and development action required by 38 U.S.C.A. § 5103A (West 2002) are fully complied with and satisfied. See also 38 C.F.R. § 3.159 (2002). 2. The RO should obtain the veteran's clinical records from the Ft. Myers, Florida, VA Outpatient Clinic since May 2002. 3. The RO should also request the veteran to identify any other private providers of treatment whose records may be pertinent to her claim on appeal. 4. Upon completion of the requested development, the RO should schedule the veteran for an orthopedic examination in order to determine the nature and etiology of her right shoulder disability. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. Following interview and examination, the examiner should be requested to provide opinion as to whether it is at least as likely as not that the veteran manifests any additional impairment of the non-service connected right shoulder disability proximately due to her use of a cane for service connected musculoskeletal disability? 5. Thereafter, the RO should readjudicate the claim for right shoulder disability claimed as secondary to service connected disability. If the claim remains denied, the veteran and her representative should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The veteran need take no action unless otherwise notified, but she may submit additional evidence and argument on the matter the Board has remanded to the RO. 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims 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 2002) (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. ______________________________________________ C.W. Symanski Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.