Citation Nr: 1430381 Decision Date: 07/07/14 Archive Date: 07/15/14 DOCKET NO. 10-07 991 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for irritable bowel syndrome (IBS), to include as secondary to service-connected fibromyalgia. 2. Entitlement to service connection for a low back disability, to include as secondary to service-connected fibromyalgia. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Journet Shaw, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1988 to December 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2008 and June 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama and San Juan, Puerto, Rico, respectively, which, in pertinent part, denied service connection for IBS and denied a separate evaluation for a back disability. In the June 2009 rating decision, the RO included the Veteran's claim for service connection for a back disability as part and parcel of his service-connected fibromyalgia evaluation. In his July 2009 notice of disagreement, the Veteran contends that his back disability is a result of an injury that occurred in service and not a symptom of his fibromyalgia. As such, the Board has recharacterized the issue as reflected on the title page. The Veteran testified before the undersigned Acting Veterans Law Judge at an April 2014 videoconference hearing. A transcript of this hearing is in the Virtual VA paperless claims file associated with the Veteran's appeal. In March 2012, the Veteran submitted additional medical evidence in support of his appeal. At his April 2014 Board hearing, the Veteran waived consideration by the RO of additional evidence submitted. The Board accepts this evidence for inclusion in the record. See 38 C.F.R. § 20.1304 (2013). The issue of entitlement to service connection for a low back disability, to include as secondary to service-connected fibromyalgia, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, the evidence indicated that the Veteran's IBS was aggravated by his service-connected fibromyalgia and is not merely a symptom thereof. CONCLUSION OF LAW The criteria to establish service connection for IBS, to include as secondary to service-connected fibromyalgia, have been met. 38 § U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Given the Board's favorable decision in granting service connection for IBS, the Board finds that all notification and development actions needed to fairly adjudicate the appeal have been accomplished. 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(a). In some cases, service connection may be established by showing evidence of a chronic disease in service, which requires a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the provisions of 38 C.F.R. § 3.303(b) pertaining to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disorder on a direct basis, there must be competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). A claim for secondary service connection requires medical evidence that connects the asserted secondary disability to the service-connected disability. Velez v. West, 11 Vet. App. 148, 158 (1998). In order to establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). A 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(a). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b) (2013); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Veteran seeks service connection for IBS. Based on the evidence of record, the Board finds that the evidence is in relative equipoise that the Veteran's IBS was aggravated by his service-connected fibromyalgia and is not merely a symptom thereof. A June 2007 VA treatment record documents that the Veteran was diagnosed with fibromyalgia. The record also shows that the Veteran complained of symptoms of alternating diarrhea and constipation. During a January 2008 VA examination, in pertinent part, for fibromyalgia and IBS, the Veteran said he experienced abdominal pain and cramping with alternating constipating and diarrhea since 2003. (He also indicated that his diffuse muscle and joint aches began at this time.). The VA examiner noted normal abdomen examination results, but made no specific findings regarding IBS. The VA examiner diagnosed the Veteran with fibromyalgia of an unknown etiology with associated sleep disturbance, irritable bowel syndrome, headaches and depression. In addition to receiving treatment for fibromyalgia, VA treatment records reflect that the Veteran continued to have gastrointestinal problems, including diarrhea, constipation, loss of bladder control, nausea, vomiting, abdominal cramps, and bloating. The VA treatment records show that the Veteran was given an impression of IBS in July 2008 and treated with dicyclomine for his stomach. Subsequent VA treatment records reflect this impression as well. As an initial matter, the Board observes that for VA purposes, under 38 C.F.R. § 3.317, IBS qualifies as a functional gastrointestinal disorder subject to service connection, as it is characterized by chronic or recurrent symptoms that are unexplained by any structural, endoscopic, laboratory, or other objective signs of injury or disease and may be related to any part of the gastrointestinal tract. 38 C.F.R. § 3.317(a)(2(i)(B)(3), Note 2 (2013). Moreover, the regulation provides that both fibromyalgia and functional gastrointestinal disorders, such as IBS, are qualifying chronic disabilities. See 38 C.F.R. § 3.317(a)(2)(i). For this reason, the Board finds that VA regulations contemplate the awarding of separate service connection grants for fibromyalgia and IBS. The Board notes that the Veteran is currently receiving the maximum allowable rating for his service-connected fibromyalgia. Under the rating criteria, the maximum rating is appropriate with or without associated symptoms such as IBS. See 38 C.F.R. § 4.71a, Diagnostic Code 5025 (2013). The Board finds that as the Veteran has a separate IBS impression and the Veteran's current rating for fibromyalgia does not require associated IBS symptoms, a separate rating for IBS would not implicate the rule against pyramiding. See 38 C.F.R. § 4.14 (2013). In sum, the Board concludes that resolving all reasonable doubt in favor of the Veteran, the evidence shows that the Veteran's IBS is a separate disability from, and was aggravated by, his service-connected fibromyalgia. Therefore, the Board finds that service connection for IBS is granted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for irritable bowel syndrome, to include as secondary to service-connected fibromyalgia, is granted. REMAND The Veteran contends that his current low back pain is the result of an in-service back injury. As previously stated, the RO, in its June 2009 rating decision, evaluated the Veteran's low back pain as part and parcel of his service-connected fibromyalgia. The RO based its decision on the findings and opinion made by the January 2008 VA examiner. In January 2008, the Veteran underwent a VA examination of his spine to determine the etiology of any current back disability. The VA examiner diagnosed the Veteran with cervical spine strain, thoracic spine strain, and lumbar spine strain, but was unable to provide an opinion on the etiology of the Veteran's disabilities, because the Veteran's claims file was not available for review. In a February 2008 email correspondence, the VA examiner responded to a request by the RO for clarification as to whether it was at least as likely as not that the Veteran's current low back pain was the same back pain that he experienced in-service or if the low back pain was part of his fibromyalgia. The VA examiner, relying on normal findings in 2007 diagnostic studies for the Veteran's spine and the "very good" range of motion that the Veteran exhibited during his VA examination, opined that the source of the Veteran's "spinal pain" was likely his fibromyalgia. The VA examiner explained that the pain was more myofascial than spinal. The VA examiner did not address whether his service-connected fibromyalgia could have aggravated his low back pain. Moreover, this examination is over 6 years old, and it is possible that a separate back diagnosis might not have been manifest then but exists now. On remand, the Veteran should be afforded a new VA examination to determine the etiology of any current back disability, to include whether such back disability was caused or aggravated by his service-connected fibromyalgia. In addition, the Board observes that the record reflects that pertinent VA treatment records are outstanding. These records must be associated with the claims file before further appellate review. Bell v. Derwinski, 2 Vet. App. 611 (1992). The AOJ must also afford the Veteran an opportunity to identify any relevant treatment records from private treatment sources. Accordingly, the case is REMANDED for the following action: 1. The AOJ should send the Veteran 38 C.F.R. § 3.159(b) notice pertaining to the issue of entitlement to service connection for a low back disability as secondary to service-connected fibromyalgia. See 38 C.F.R. § 3.310 (2013). 2. The AOJ should obtain all of the Veteran's outstanding treatment records that are not currently of record, including those VA treatment records at the Montgomery VAMC/Columbus CBOC dated from June 2010 onward. The Veteran must be provided with the necessary authorizations for the release of any treatment records. The AOJ must then obtain and associate the records with the claims file or virtual record. 3. After the above development has been completed, the AOJ should schedule the Veteran for a VA examination by an appropriately qualified examiner to determine the nature and etiology of any back disability. The claims file, including a copy of this REMAND, and access to the virtual record must be made available to the examiner for review. The examiner is asked to address the following: a. Does the Veteran currently have a back disability, separate from fibromyalgia? If so, please identify each current diagnosis. b. Is it at least as likely as not that (a 50 percent or greater probability) that any back disability is related to the Veteran's active duty service? c. Is the Veteran's back disability at least as likely as not aggravated by his service-connected disabilities, to include his fibromyalgia? In providing the requested opinions, the examiner is reminded that a complete rationale with citation to relevant evidence found in the claims file must be provided for the opinions offered. 3. Then, the AOJ should readjudicate the claim. If the benefits sought on appeal remain denied, the Veteran should be provided a supplemental statement of the case (SSOC). A reasonable period of time should be allowed for response before the appeal is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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. 2013). ______________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs