Citation Nr: 0714635 Decision Date: 05/16/07 Archive Date: 06/01/07 DOCKET NO. 00-03 594 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Entitlement to service connection for post traumatic stress disorder. 2. Entitlement to service connection for a gastric disorder, to include as secondary to service-connected degenerative disc disease of the lumbosacral spine and degenerative joint disease of the bilateral knees. 3. Entitlement to a total disability rating based on individual unemployability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Millikan Sponsler, Associate Counsel INTRODUCTION The veteran served on active military duty from September 1971 to July 1972. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA) and Board remand. The issues of entitlement to service connection for post traumatic stress disorder (PTSD) and entitlement to a total disability rating based on individual unemployability (TDIU) are addressed in the remand portion of the decision below and are remanded to the RO via the Appeals Management Center, in Washington, DC. FINDING OF FACT The competent evidence of record demonstrates that a gastric disorder is related to service-connected lumbar spine degenerative disc disease and bilateral knee degenerative joint disease. CONCLUSION OF LAW A gastric disorder is proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the veteran's claim for entitlement to service connection for a gastric disorder, to include as secondary to service-connected lumbosacral spine degenerative disc disease and bilateral knee degenerative joint disease, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2006). Prior to post- remand readjudication of the veteran's claim, October 2004 and March 2006 letters satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (noting that a VCAA defect may be cured by the issuance of a fully compliant notification letter followed by a re- adjudication of the claim). The letters also essentially requested that the veteran provide any evidence in his possession that pertained to this claim. 38 C.F.R. § 3.159(b)(1). The veteran's service medical records, VA medical treatment records, and identified private medical records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that additional evidence relevant to the issues decided herein is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. 473. Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may 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). In addition, a gastric or peptic ulcer may be presumed to have been incurred during service if it first became manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1110, 1112; 38 C.F.R. §§ 3.307, 3.309. In order to establish service connection for a claimed disorder, the following must be shown: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). Additionally, service connection may be granted where a disability is determined to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis 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. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The veteran's service entrance examination was negative for a gastrointestinal disorder. An October 1971 record indicated the veteran reported chest pain of 2 days. In April 1972, the veteran reported sharp pain in and around his sternum of 2 to 3 months. The pain occurred mostly at night and was well-localized. The assessment was rule out peptic reflux. The veteran's service discharge examination was negative for a gastrointestinal disorder. An October 1981 private medical record indicated the veteran was hospitalized for 5 days for acute gastroenteritis. In a May 1986 private record, the veteran complained of chest pain. It was noted that the veteran was taking anti- inflammatory medications. The impression was epigastric pain, rule out degenerative disease of the spine versus mild fascial syndrome versus osteochondritis versus peptic ulcer disease. The veteran was admitted to the hospital for lumbosacral pain. During the hospitalization, the veteran continued to have abdominal pain, which was felt to be related to gastrointestinal etiology. An upper gastrointestinal series showed no evidence of peptic ulcer disease. An endoscopy showed small gastric ulcerations and monilial esophagitis. The recommendations were Zantac, antacids, and to discontinue ethanol and avoid aspirin products and other irritants. Gastric erosion was felt to be related to medication therapy for chronic pain and exacerbated by the use of ethanol and stress. The final diagnoses included abdominal and chest pain due to erosive gastritis and esophagitis and monilial esophagitis, indirectly related to therapy for pain condition. An October 1990 VA medical record noted there was gastrointestinal distress and reflux and that the causative agent was nonsteroidal anti-inflammatory drugs (NSAIDs). A January 1991 VA examination was conducted. The veteran reported ulcers. The diagnosis was history of peptic ulcer, asymptomatic. In a March 1999 VA record, the veteran reported chest pain every other night and a history of reflux. The impression was gastroesophageal reflux disease (GERD). In an April 1999 VA record, the veteran reported chest pain. The diagnosis was chest pain, non-cardiac. In an April 1999 private medical record, the veteran reported dull chest pain beneath the sternum which he thought was heartburn. The pain lasted about 15 minutes with gradual resolution and without nausea or vomiting. The assessment was chest pain, atypical. In a May 1999 private record, dull substernal chest pain of the prior month was noted. An electrocardiogram (EKG) was unremarkable. In a July 1999 VA medical record, the impression was GERD, NSAID intolerable. In am August 2000 VA record, it was noted that the veteran was allergic to or had an adverse reaction to NSAIDs. In a November 2000 VA record, it was noted that Celebrex had caused gastrointestinal intolerance. In a December 2000 VA record, the veteran reported sharp pains in his stomach. It was noted that the veteran was allergic to or had an adverse reaction to NSAIDs. In another December 2000 VA record, the veteran reported peptic ulcer disease without gastrointestinal bleeding. In a December 2000 letter, the veteran's private physician, T.H., M.D., assessed GERD with symptoms dating back to the 1970's. The physician noted that there was no documented gastrointestinal bleeding or gastric ulcers. In a January 2001 VA medical record, the veteran reported that he was limited in how much Celebrex he could take for his chronic pain due to stomach distress. In a July 2001 VA record, the veteran reported a hiatal hernia and a history of severe chest pain, but none recently. In a November 2001 private medical record, GERD was noted. In a March 2002 VA medical record, the veteran reported a history of hiatal hernia and severe chest pain, but none recently. In an April 2003 VA record, the veteran reported an episode of left-sided chest pain. An August 2004 VA record indicated a prior medical history of GERD and peptic ulcer disease. Another August 2004 VA record noted the veteran was allergic to or had an adverse reaction to NSAIDs. September 2004 VA records indicated the veteran complained of hiatal hernia, indigestion, reflux, and abdominal pain, but reported no chest pain, nausea, or vomiting. Another September 2004 VA record noted that the veteran was unable to tolerate a change in medication due to gastrointestinal side effects. In an October 2004 letter, Dr. T.H. stated that in the course of treating the veteran's service-connected spinal disease, the veteran had incurred gastrointestinal disease due to prescribed medications. In a December 2004 VA medical record, the veteran reported history of ulcers and gastritis. He reported chest pain and some nausea. The impression was dyspepsia. A December 2004 VA gastroenterology examination was conducted. The veteran reported that the onset of symptoms was in 1972 when he was receiving feldene/piroxicam for knee pain. The veteran also reported that he had been diagnosed with gastric erosion and gastritis due to medication. The examiner noted that a review of private medical records showed that in 1986, gastric erosion and gastritis were diagnosed and were attributed to medication utilized for the treatment of arthritis pain. Upon examination, the impression was epigastric pain, rule out gastritis, rule out peptic ulcer disease, rule out gallbladder disease. An esophagoduodenoscopy (EGD) found esophagus, stomach, and duodenum within normal limits. A biopsy of gastric mucous revealed no pathological diagnosis. The examiner stated that there was no endoscopic evidence or histopathologic evidence of any persistent gastrointestinal disorder of the esophagus, stomach, or duodenum, and that any injury related to NSAIDs utilized previously had resolved. An August 2005 VA fee-based examination was conducted upon a review of the claims file and extensive medical history. An upper gastrointestinal test showed no definite hiatal hernia, no observed reflux, and no stenosis. There was marked full thickness increase in the gastric cardia and body of the stomach with no gastric outlet obstruction or antral abnormality - gastritis or diffuse gastric inflammation could cause this appearance. A defined ulcer was not seen, though a small ulcer could not be excluded given the limited distensibility and mobility of the stomach. The examiner diagnosed gastric ulcer disease, resolved, and chronic gastritis. The Board finds that the evidence of record supports a finding of service connection for a gastrointestinal disorder as secondary to medications provided due to service-connected disabilities. There is a currently diagnosed gastrointestinal disorder, chronic gastritis. Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). The medical evidence of record indicates that a gastric disorder was caused by medication for treatment of the veteran's service-connected disabilities. See Madden v. Brown, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (noting that the Board must assess the credibility and probative value of the medical evidence in the record); see also Allen, 7 Vet. App. at 448. Although the December 2004 VA examiner stated that any prior gastrointestinal disorder due to NSAIDs had resolved, that finding was based on the lack of finding a current disorder. See Prejean v. West, 13 Vet. App. 444, 447 (2000) (noting that the Board must account for evidence that it finds persuasive and unpersuasive); see also Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (holding that the probative value of a medical opinion is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion). However, the August 2005 VA examiner, upon a review of the claims file and an extensive history, diagnosed current chronic gastritis. Prejean, 13 Vet. App. at 448-9 (holding that factors for assessing the probative value of a medical opinion include access to the claims file and the thoroughness and detail of the opinion). In addition, in an October 2004 letter, the veteran's treating private physician opined that the veteran had incurred gastrointestinal disease due to medication prescribed for the service-connected spinal disease. Moreover, private medical records from May 1986 and VA medical records from October 1990, July 1999, and November 2000 contain opinions that a gastrointestinal disorder was caused by medications prescribed for service-connected disabilities. Resolving the benefit of the doubt in favor of the veteran, the evidence shows that the current gastric disorder is secondary to service-connected lumbar spine degenerative disc disease and bilateral knee degenerative joint disease. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection is warranted for a gastric disorder. ORDER Service connection for a gastric disorder, secondary to service-connected lumbar spine degenerative disc disease and bilateral knee degenerative joint disease, is granted. REMAND Although this case has already been subject to remand, the Board finds that an additional remand is required for clarification of the issues on appeal. The Board finds that remand is required regarding the claim for entitlement to service connection for PTSD because the examination of record is insufficient upon which to base an appellate decision. Littke v. Derwinski, 1 Vet. App. 90, 93 (1990) (noting that remand may be required if record before the Board contains insufficient medical information). The August 2005 VA fee-based PTSD examination was insufficient for two reasons. First, although the examiner diagnosed PTSD, the examiner stated that he was obligated to rely on the treating VA physician's prior diagnosis because the treating physician had been seeing the veteran longer. Thus, it is unclear whether the examiner made an independent assessment of the existence of PTSD. In addition, the examiner did not address the veteran's primary alleged personal assault stressor and made statements indicating that the claims file was not properly reviewed. The Board finds that remand is required for the claim for entitlement to TDIU for two reasons. First, VA may not reject a claim for entitlement to TDIU without producing evidence, as distinguished from mere conjecture, that the veteran's service-connected disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995); see also 38 C.F.R. § 4.16a (veteran entitled to TDIU where the veteran is unable to secure a substantially gainful occupation as result of service-connected disabilities) (2006). There is no such medical opinion of record. Second, the issue of entitlement to TDIU is intextricably intertwined with the resolution of the claim for service connection for PTSD because entitlement to TDIU requires consideration of the effect on employability of all service-connected disabilities. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that when a determination on one issue could have a significant impact on the outcome of another issue, such issues are considered inextricably intertwined and VA is required to decide those issues together). Accordingly, the case is remanded for the following action: 1. The RO must provide the veteran with a VA psychiatric examination by a different examiner than performed the August 2005 examination, to ascertain the etiology of PTSD, if found. The RO must specify for the examiner the veteran's alleged stressor or stressors and the examiner must be instructed that only those listed events may be considered for the purpose of determining whether the veteran was exposed to a stressor in service. The examiner must be provided with the entire claims file for review in conjunction with the examination. All necessary special studies or tests including psychological testing and evaluation must be accomplished. The examiner must integrate the previous psychiatric findings and diagnoses of current findings to obtain a true picture of the nature of the veteran's psychiatric status. If the diagnosis of PTSD is deemed appropriate, the examiner must specify (1) whether any stressor found to be established by the record was sufficient to produce PTSD; and (2) whether there is a link between the current symptomatology and one or more of the inservice stressors found to be established by the record and found sufficient to produce PTSD by the examiner. The report of examination must include a complete rationale for all opinions expressed. The report must be typed. 2. The RO must schedule the veteran for a VA examination to determine the impact that his service-connected disabilities have on his employability. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The claims file must be made available to and reviewed by the examiner in conjunction with the requested study. The examiner must elicit from the veteran, and record for clinical purposes, a full work and educational history. Based on the review of the claims file, the examiner must provide an opinion as to whether the veteran is unable to obtain or retain employment due only to his service- connected disabilities, consistent with his education and occupational experience, irrespective of age and any nonservice- connected disorders. The examiner must specifically address whether, as stated in the August 2005 VA fee-based examination, the veteran's paraplegia is caused by a service-connected disability, to include lumbar spine degenerative disc disease and/or bilateral knee degenerative joint disease. A complete rationale for any opinions expressed must be given. The report must be typed. 3. The RO must notify the veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2006). In the event that the veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. The examination reports must be reviewed to ensure that they are in complete compliance with the directives of this remand. If the reports are deficient in any manner, the RO must implement corrective procedures. 5. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the RO must readjudicate the claims. With respect to the claim for entitlement to service connection for PTSD, the RO must specifically address whether the veteran's service personnel records verify the veteran's alleged stressor. If the claims remain denied, a supplemental statement of the case must be provided to the veteran and his representative. After the veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs