Citation Nr: 1302311 Decision Date: 01/22/13 Archive Date: 01/31/13 DOCKET NO. 10-40 709 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for diabetes mellitus as secondary to treatment for service-connected ulcerative colitis. 2. Entitlement to service connection for degenerative arthritis of the lumbar spine as secondary to treatment for service-connected ulcerative colitis. 3. Entitlement to service connection for degenerative arthritis of the cervical spine as secondary to treatment for service-connected ulcerative colitis. 4. Entitlement to service connection for a bilateral knee disability as secondary to treatment for service-connected ulcerative colitis. 5. Entitlement to service connection for a bilateral elbow disability as secondary to treatment for service-connected ulcerative colitis. 6. Entitlement to service connection for a bilateral wrist disability as secondary to treatment for service-connected ulcerative colitis. 7. Entitlement to service connection for a bilateral hand condition as secondary to treatment for service-connected ulcerative colitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD H. Hoeft, Counsel INTRODUCTION The Veteran served on active duty from June 1982 to November 1992. This matter came before the Board of Veterans' Appeals (the Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In July 2012, the Veteran testified before the undersigned at a Travel Board hearing. A transcript of the hearing has been associated with the claim file. After the hearing, the Veteran submitted additional, relevant evidence in the form of private treatment records with a waiver of initial RO consideration. The issue of entitlement to service connection for cataracts as secondary to treatment for service-connected ulcerative colitis has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issues of entitlement to service connection for lumbar spine, cervical spine, bilateral wrist, bilateral hand, and bilateral elbow disabilities as secondary to treatment/medications (i.e., prednisone) taken for service-connected ulcerative colitis are and addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Resolving doubt in the Veteran's favor, diabetes mellitus is proximately due to prednisone used to treat his service-connected ulcerative colitis. 2. Resolving doubt in the Veteran's favor, degenerative joint disease of the right knee is proximately due to service-connected ulcerative colitis and/or prednisone use for treatment of such condition. 3. Resolving doubt in the Veteran's favor, degenerative joint disease of the left knee is proximately due to service-connected ulcerative colitis and/or prednisone use for treatment of such condition. CONCLUSIONS OF LAW 1. Resolving doubt in the Veteran's favor, the criteria for service connection for right knee degenerative arthritis, as secondary to service-connected ulcerative colitis are met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2012). 2. Resolving doubt in the Veteran's favor, the criteria for service connection for right knee degenerative joint disease, as secondary to service-connected ulcerative colitis are met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2012). 3. Resolving doubt in the Veteran's favor, the criteria for service connection for left knee degenerative joint disease, as secondary to for service-connected ulcerative colitis are met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA) includes enhanced duties to notify and assist claimants for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Given the favorable disposition of the claim for service connection for diabetes, the Board finds that all notification and development action needed to fairly adjudicate this claim has been accomplished. Service Connection - Applicable Laws and Regulations Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disorder, there must be: (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). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). A claimant is also entitled to service connection on a secondary basis when it is shown that a service-connected disability aggravates a nonservice- connected disability. Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310(b). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Entitlement to Service Connection for Diabetes on a Secondary Basis In this case, the Veteran contends that his diabetes is directly linked to medications (specifically, prednisone) used to treat his service-connected ulcerative colitis. See, e.g., January 2010 Notice of Disagreement. He thus seeks service connection on a secondary basis. As a preliminary matter, the medical evidence of record establishes a current diabetes mellitus, type II, diagnosis. See, e.g., August 2009 VA Examination. In addition, the Veteran is currently service connected for ulcerative colitis. See May 1993 Rating Decision. Both medical and lay evidence confirm that the Veteran took prednisone, a potent anti-inflammatory steroid, for treatment of his colitis condition, from approximately 1991 until his colectomy procedure in 1997. See Hearing Transcript, generally; see also March 1993 and June 1995 VA Examinations; and pre-colectomy private treatment records from Dr. Terem, 1997. He was diagnosed with diabetes in approximately 2002. Based on the above, the Veteran has established the first two elements necessary for secondary service connection - namely a current disability (i.e., diabetes), and a service-connected disability (i.e., ulcerative colitis). The Board must now consider whether the diabetes is proximately due to or the result of extensive prednisone use for treatment of the service-connected ulcerative colitis (i.e., the nexus requirement). 38 C.F.R. § 3.310. The record contains conflicting opinions with respect to the issue of medical nexus. On the one hand, Dr. Graf, a private endocrinologist, opined that it was "quite likely" that the Veteran's prednisone use over the course of 6 years (i.e., prior to the colectomy in 1997) "contributed to the development of diabetes later on in his life." See May 2010 Report from Dr. Graf. Dr. Graf explained that prednisone puts undue stress on the pancreas in an attempt to compensate for insulin, and was therefore, a likely culprit in the development of diabetes in a genetically pre-disposed individual. The Board assigns great probative to this opinion as Dr. Graf is the Veteran's treating endocrinologist and is likely intimately familiar with his medical/diabetic history. Moreover, the opinion properly considered the length of the prednisone therapy treatment, as well as its effects on the pancreas and the development of diabetes, and was based upon sound medical rationale/reasoning. On the other hand, the August 2009 VA examiner opined that the diabetes was less likely than not related to his treatment of colitis, to include prednisone. He essentially reasoned that the Veteran would have developed diabetes more proximate to his cessation of prednisone therapy (or during the course of the prednisone therapy) if there was a causal relationship. Instead, the Veteran developed diabetes in 2002, several years after his colectomy/use of prednisone in 1997. The examiner also stated that he did not have medical records dated during the Veteran's prednisone treatment, so he was not actually able to confirm the presence/absence of diabetes during that time period. In this regard, the Board assigns less probative value to VA examiner's opinion since it was largely based upon conjecture - indeed, the VA examiner admitted that he did not have access to sugar/blood level laboratory reports during the course of the Veteran's prednisone therapy to confirm the presence/absence of diabetes, and yet, he provided a negative opinion based solely upon the unavailable of such records. Moreover, the examiner never properly considered whether the Veteran's long-term prednisone ultimately contributed to, or aggravated, the later-diagnosed diabetes. For these reasons, the Board finds Dr. Graf's opinion to be more probative and persuasive than the VA examiner's opinion. As a final matter, the Board notes that the Veteran's wife, a registered nurse, testified that prednisone places a large strain on the pancreas and kidneys, and that "copious amounts of [medical] evidence supports that prednisone will result in diabetes if eventually if it is taken long enough." The Board recognizes that she is competent to offer opinions on medical matters. Cox v. Nicholson, 20 Vet. App. 563 (2007). In sum, the Board acknowledges that there is evidence against the claim, inasmuch as the August 2009 VA examiner did not find that the Veteran's diabetes was related to prednisone treatment for the service-connected ulcerative colitis. For reasons explained above, however, the Board has assigned little probative value to this opinion. We are thus left with the more probative opinion of Dr. Graf, which found that the Veteran's development of diabetes was, at the very least, proximately due to his long-term use of prednisone for treatment of service-connected colitis, as well as the Veteran's wife's competent and probative testimony regarding diabetes and prednisone, which also weighs in favor of the claim. Based on the foregoing, the Board finds that the evidence is in at least equipoise. Resolving reasonable doubt in the Veteran's favor, the claim is granted. 38 U.S.C.A. § 5107(b) (West 2002). Entitlement to service connection for right and left knee degenerative joint disease on a secondary basis The Veteran also contends that his left and right knee degenerative joint disease is directly linked to medications (specifically, prednisone) used to treat his service-connected ulcerative colitis. See, e.g., January 2010 Notice of Disagreement. He thus seeks service connection on a secondary basis. As a preliminary matter, the medical evidence of record establishes a current left and right knee disabilities, variously diagnosed as degenerative joint disease and patellofemoral arthritis. See, e.g., February 2010 Treatment Report From Dr. Graf; see also march 2009 Treatment Report From Dr. Yancey and Referenced 2006 MRI scan. In addition, as noted above, the Veteran is currently service connected for ulcerative colitis. See May 1993 Rating Decision. Both medical and lay evidence confirm that the Veteran took prednisone, a potent anti-inflammatory steroid, for treatment of his colitis condition, from approximately 1991 until his colectomy procedure in 1997. See Hearing Transcript, generally; see also March 1993 and June 1995 VA Examinations; and pre-colectomy private treatment records from Dr. Terem, 1997. He was diagnosed with arthritis in approximately 2006. Based on the above, the Veteran has established the first two elements necessary for secondary service connection - namely a current disability (i.e., right and left knee DJD), and a service-connected disability (i.e., ulcerative colitis). The Board must now consider whether right and left knee DJD are proximately due to or the result of service-connected ulcerative colitis and/or extensive prednisone use for the treatment of such condition (i.e., the nexus requirement). 38 C.F.R. § 3.310. The record medical opinions weighing both in favor of, and against the Veteran's claim. With respect to the evidence against the Veteran's claim, the August 2009 VA examiner opined that it was "medically impossible to correlate treatment of colitis, including prednisone" to the arthritic conditions. The VA examiner provided no other reasoning or rationale for his conclusion. With respect to the evidence in favor of the Veteran's claim, in April 2010, the Veteran's long-time treating physician, Dr. Yancey, stated that the Veteran's bilateral knee condition/arthritis was associated with his ulcerative colitis since he had very few other risk factors for DJD. In an earlier dated treatment record, Dr. Yancey again indicated that his bilateral knee was "probably" related to ulcerative colitis given the Veteran's relatively young age for DJD. See April 2010 Treatment Note, Dr. Yancey. In a March 2009 treatment note, Dr. Yancey stated that the Veteran's knee pain (diagnosed as arthritis) was "possibly" related to his ulcerative colitis, which also carries an inflammatory arthritis with various patients. A February 2010 private treatment note from Dr. Graf, the Veteran's endocrinologist, reflects a diagnosis of "probable colitis induced arthritis." Lastly, in an undated statement provided by a private nurse practitioner, B. Price stated that the Veteran's past prednisone use caused him to gain weight and lose bone density. B. Price also stated that there was current erosion of the knee joint, which, in his opinion, was directly caused by prednisone use and resulted in bone loss, increased weight, and additional stress on the knees. The Board recognizes that several of the positive opinions outlined above are somewhat speculative in nature; however, the medical evidence, overall, favors the Veteran's claim for service connection on a secondary basis. Indeed, Dr. Yancey unequivocally stated that the Veteran's knee arthritis was associated with his ulcerative colitis, noting the lack of other contributing factors, as well as the Veteran's relatively young age for DJD. Dr. Yancey's opinions are likewise supported by those of Dr. Graf (who diagnosed "probable colitis induced arthritis" of the knees) and B. Price. As such, the Board affords great probative value to the opinions of Drs. Yancey and Graf, and B. Price (a nurse practitioner), when viewed comprehensively. The Board likewise notes that the VA examiner's opinion is of little probative value since it was conclusory in nature and failed to provide any reasoning or supporting rationale. In sum, the most probative evidence of record weighs in favor of the Veteran's claim and supports a finding that DJD of the left and right knee is proximately due to service-connected ulcerative colitis and/or prednisone use. Resolving reasonable doubt in the Veteran's favor, the claim is granted. 38 U.S.C.A. § 5107(b) (West 2002). ORDER Entitlement to service connection for diabetes mellitus, type II, as secondary to treatment for ulcerative colitis, is granted. Entitlement to service connection for left knee degenerative arthritis, as secondary to ulcerative colitis, is granted. Entitlement to service connection for right knee degenerative arthritis, as secondary to ulcerative colitis, is granted. REMAND The Veteran also contends that he has disabilities (namely, arthritis/degenerative joint disease) of the bilateral hands, wrists, elbows, and cervical and lumbar spine which are secondary to service-connected arthritis and/or treatment (prednisone) for such disability. The Board notes that the Veteran was previously afforded a VA examination in August 2009 to address this issue. Contemporaneous x-rays of the bilateral hands, wrists, and elbows did not show arthritis or degenerative disease; however, x-rays of the cervical and lumbar spine confirmed degenerative disc and joint disease (DJD). With respect to the medical opinion, the VA examiner stated that it was "medically impossible" to correlate treatment of colitis, including prednisone, to any of the claimed arthritic conditions. He provided no reasoning or supporting rationale for this conclusory statement. Since the time of the August 2009 VA examination, the Veteran and his wife, who is a registered nurse, have presented testimony before the undersigned Veterans Law Judge indicating that there are relevant, outstanding private treatment records relating to the Veteran's claimed disabilities. The Veteran has also submitted a select few private treatment records, dated from 2009 to 2011, which indicate ongoing treatment for non-specific arthritis, DJD of the knees (granted herein), DJD disease of the lumbar spine, as well as complaints of hand, wrist, and elbow pain. Notably, none of these records document current hand, wrist, or elbow DJD diagnoses. Rather, the private treatment records show that the Veteran has bilateral carpal tunnel syndrome with associated hand/wrist/elbow pain. Additionally, to the extent that the Veteran has submitted private treatment records which suggest a link between arthritis and ulcerative colitis and/or prednisone use, none of these records specifically address the diagnosed DJD of the lumbar and cervical spine, or the claimed (but not diagnosed) arthritis of the elbows, hands, or wrists. Unlike the opinions directly relating the Veteran's diabetes and DJD of the knees to ulcerative colitis/prednisone, the statements offered by the private physicians regarding "arthritis," in general, are largely speculative in nature. For example, in a May 2010 statement, Dr. Graf indicated that the Veteran continued to suffer from "symptoms of arthritis perhaps related to his ulcerative colitis." Dr. Graf did not specify the type of arthritis he was referring to (i.e., knee, back, hand, etc.,), couched his conclusion in rather speculative terms (i.e., "perhaps"), and provided no rationale for his statement. In light of Dr. Graf's speculative statement; the competent testimony provided by the Veteran and his wife; and the August 2009 VA examiner's conclusory opinion (which was offered without reasoning or rationale), the Board finds that the claims should be remanded to obtain any outstanding private treatment records and to afford the Veteran a new VA examination to address whether: (a) he has current disabilities of the bilateral wrists and hands, to include arthritis and/or degenerative joint disease, and (b) whether such disabilities are caused by, proximately due to, or otherwise aggravated by the service-connected ulcerative colitis, to include long-term prednisone therapy. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran an additional opportunity to submit any information that is not evidenced by the current record. Provide him with forms authorizing the release of any outstanding private treatment records, to include any records from Dr. Yancey (Gig Harbor) and Dr. Graf. If any identified records are unavailable, inform the Veteran and request that he submit any copies in his possession. All records received should be associated with the claims file. If any records cannot be obtained after reasonable efforts have been expended, the Veteran should be notified and allowed an opportunity to provide such records, in accordance with 38 C.F.R. § 3.159(c) &(e). 2. After completing the above-described development, the Veteran should be scheduled for the appropriate VA examination to determine whether any diagnosed disabilities, to specifically include arthritis/DJD of the cervical spine, lumbar spine, bilateral hands, bilateral wrists, and bilateral elbows, are secondary to the service-connected ulcerative colitis and/or prednisone use for treatment of the service-connected condition. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. All indicated studies should be performed, and all findings should be reported in detail. The examiner should answer the following: a. Please identify all current diagnoses relating to the (i) lumbar spine; (ii) cervical spine; (iii) bilateral hands; (iv) bilateral wrists; (v) bilateral elbows, to specifically include any diagnoses relating to arthritis and/or degenerative joint or disc disease. b. For each disability of the lumbar spine, cervical spine, and bilateral hands, wrists, and elbows identified above, please determine whether the disability is proximately due to or secondary to the service-connected ulcerative colitis. The examiner should consider both initial causation, and the possibility that any diagnosed disabilities of the lumbar spine, cervical spine, and of the bilateral hands, wrists, and elbows have been permanently aggravated by ulcerative colitis. c. The examiner should also determine whether any of the diagnosed disabilities (identified in part (a) above) are proximately due to or secondary to long-term prednisone use for treatment of the service-connected colitis. The examiner should consider both initial causation by prednisone taken for service-connected colitis disability, and the possibility that the claimed/diagnosed disabilities of the lumbar spine, cervical spine, and of the bilateral hands, wrists, and elbows have been permanently aggravated by the same. The VA examiner is reminded of the need to provide a complete and thorough rationale for all conclusions reached. In doing so, the examiner is also asked to expressly consider those opinions/statements provided by Dr. Graf and Dr. Yancey, which generally suggest a link between inflammatory arthritis and/or colitis induced arthritis, prednisone use and arthritis, as well as the fact the Veteran is currently service connected for DJD of the knees based on a secondary basis. The examiner is also asked to reconcile those findings of the August 2009 examiner, if possible. 3. After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims should be readjudicated. If a claim remains denied, a supplemental statement of the case should be provided to the Veteran. After he has had an adequate opportunity to respond, these issues should be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs