Citation Nr: 1545286 Decision Date: 10/23/15 Archive Date: 10/29/15 DOCKET NO. 13-07 505 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for an eye disorder, to include conjunctivitis or dry eye syndrome. 2. Entitlement to an initial evaluation in excess of 10 percent for service connected irritable bowel syndrome. REPRESENTATION Veteran represented by: Wisconsin Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Avery M. Schonland, Associate Counsel INTRODUCTION The Veteran had active service from August 1980 t0 October 1982, November 1990 to March 1991, June 1991 to December 1991, February 2005 to April 2006, April 2007 to February 2009, February 2009 to March 2010, and October 2010 to September 2011. His periods of active duty included deployment to Southwest Asia from July 1991 through November 1991 and April 2009 through January 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah as part of the Benefits Delivery at Discharge program. The RO in Milwaukee, Wisconsin certified this case to the Board on appeal. In August 2015, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. During the pendency of the appeal, the RO issued a rating decision and supplemental statement of the case (SSOC) in August 2013, increasing the initial noncompensable evaluation for service-connected irritable bowel syndrome (IBS) to 10 percent effective the day following the Veteran's final separation from service. As such, his IBS is currently assigned a 10 percent evaluation from October 1, 2011. Applicable law mandates that, when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). Thus, the issue of entitlement to a higher initial evaluation remains on appeal and has been recharacterized as reflected on the title page. The Veteran's appeal also initially included claims of entitlement to service connection for hypertension and a skin disorder. However, the Veteran withdrew these issues in an August 2013 statement. Therefore, these issues are not before the Board for appellate review. See 38 CFR 20.204(b)(1). This case consists entirely of documents in the Veterans Benefits Management System (VBMS) and Virtual VA. The Board has reviewed all relevant documents in both Virtual VA and VBMS. Any future consideration of this Veteran's case should take into consideration the existence of this electronic record. FINDING OF FACT An eye disorder, to include conjunctivitis or dry eye syndrome, had its onset during service. CONCLUSION OF LAW The criteria for the establishment of entitlement to service connection for an eye disorder have been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.326(b) (2015). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). In the decision below, the Board grants service connection for an eye disorder. In light of the favorable decision on the Veteran's claim of entitlement to service connection for an eye disorder, the Board finds that all notification and development action needed to fairly adjudicate this appeal have been accomplished. The Veteran seeks service connection for an eye disorder based on in-service onset. Specifically, he testified that his eye disorder began in November 2009 during his deployment to Iraq from April 2009 through January 2010. Generally, to prove service connection, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In certain cases, competent lay evidence may demonstrate the presence of any of these elements. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). The Board finds that the weight of the evidence of record supports a finding of service connection for an eye disorder to include conjunctivitis or dry eye syndrome. First, there is a current diagnosis of dry eye syndrome, as the Minneapolis VAMC and Twin Ports CBOC treatment records reflect ongoing prescription treatment for dry eye syndrome with Restasis from May 2012 through November 2013. The private treatment records similarly reflect a post service prescription for Restasis in December 2011. Second, the Board finds that there was an in-service event or injury. The Veteran's service treatment records show November 2009 treatment for mucus discharge from his eyes and dry eyes, diagnosed as conjunctivitis. He returned for irrigation, and continued to seek treat for severe conjunctivitis while deployed. On his December 2009 post deployment health assessment, he reported red, watery eyes. In January 2010, he was still using a Restasis prescription for dry eye syndrome. The Veteran was then discharged from active duty in March 2010. In March 2011, when the Veteran was back on active duty, there is notation of chronic blepharitis. The Veteran reported a history of an eye disorder treated with a prescription for Restasis at his August 2011 separation examination. Accordingly, there were eye symptoms and diagnoses during service. The remaining question is whether the evidence of record shows that the Veteran's current diagnosis of dry eye syndrome is related to the in-service conjunctivitis, dry eye syndrome, and blepharitis. The Veteran testified that his dry eye syndrome had been a constant problem since his deployment to Iraq. His testimony also described ongoing treatment since 2009. The Board finds this testimony both competent and credible. Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The symptoms of dry eyes and treatment with Restasis are readily observable, and the Veteran is therefore competent to testify as to these symptoms and this treatment. Further, lay testimony as to treatment is competent as a factual matter, with first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board finds this lay evidence credible as it is consistent throughout and is supported by his service treatment records as discussed above and post-treatment records reflecting Restasis prescription since December 2011. See Washington, 19 Vet. App. at 367; Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995). In the December 2009 post deployment health assessment, the examiner opined that the dust and environmental exposures during deployment had likely caused the conjunctivitis. The physician noted the Veteran's report of red, watery eyes at that post deployment health assessment. The physician also performed this examination while the Veteran was still deployed to Iraq, and therefore was familiar with the dust and environmental exposures incurred there. The Board finds this opinion highly probative as it based upon a review of the relevant medical information and the Veteran's competent and credible testimony. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The Board highlights that the physician's opinion is supported by the Veteran's lay testimony, and the other service treatment records discussed above. The Board finds that the opinion of the physician conducting the December 2009 post deployment health assessment supports a finding that the Veteran's dry eye syndrome began during service, and both his lay statements and the post-service treatment records support a finding that dry eye syndrome has existed since that time. Thus, the evidence supports the award of service connection. Notably, a September 2011 VA examiner diagnosed dry eyes, but offered a negative nexus opinion. This opinion cited the November 2009 service treatment records documenting the Veteran's report of February 2009 onset of dry, itchy, irritated eyes while stationed at Fort Lewis. The VA examiner noted that February 2009 was prior to the Veteran's April 2009 deployment to Iraq. However, the Veteran's DD 214s reflect that even if the Veteran's dry eyes had their onset in February 2009, the Veteran was on active duty from April 2007 to February 9, 2009 and from February 11, 2009 to March 2010. Regardless of whether he was deployed, the Veteran was on active duty in February 2009 (except for February 10th). The rationale supporting this conclusion actually supports the grant of service connection, by citing in-service onset for dry eyes in February 2009. Therefore, there is no evidence of record to weigh against the Veteran's lay statements that his dry eyes have persisted since the in-service onset for the disability. The Veteran's statements coupled with the opinion by the examiner conducting the December 2009 post deployment health assessment support the award of service connection. Accordingly, service connection for dry eye syndrome is warranted. ORDER Service connection for dry eye syndrome is granted. REMAND Although the Board regrets the delay, remand is required for obtaining outstanding post-service treatment records. In the Veteran's Virtual VA and VBMS files, there are Minneapolis VAMC records for treatment from May 2012 through November 2013. In May 2012, the Veteran reported that he will continue to use non-VA medical care for most of his health concerns, but wanted to see a VA physician for his dry eye condition. He also reported to the July 2013 VA examiner that, in May 2013, a VA Twin Ports CBOC healthcare provider recommended that he use Imodium to treat his service-connected IBS. This is consistent with his August 2015 hearing testimony that a VA provider had prescribed Imodium. The VA treatment records, while encompassing May 2013, appear to have been sorted specifically for ophthalmological treatment records, and do not reflect May 2013 treatment for IBS or any prescription for Imodium. These VA records must be obtained. The VA treatment records also reflect that non-VA treatment records were scanned in the VistA Imaging system in June 2012 and July 2012. In January 2013, the Veteran submitted records from Dr. BGR at St. Luke's for treatment in December 2011, November 2012, and January 2013; but not June 2012 or July 2012. Therefore, there appear to be outstanding private treatment records. Additionally, the Veteran's August 2015 testimony indicated that the Imodium prescription controls diarrhea, but that he would have immediate problems after eating without it. His testimony also suggests that this diarrhea alternates with constipation when the Imodium works well. The July 2013 VA examiner had not found alternating diarrhea and constipation. Remand is therefore also required for a more current VA examination. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and afford him the opportunity to identify by name, address, and dates of treatment or examination any relevant medical records. A specific request should be made for any records for treatment of his IBS and any treatment records from Dr. BGR at St. Luke's. Subsequently, and after securing the proper authorizations where necessary, arrange to obtain all the records of treatment or examination from all the sources listed by the Veteran that are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 2. Contact any appropriate VA Medical Center and obtain and associate with the paper or virtual claims file all outstanding records of treatment since May 2012. This should specifically include the Minneapolis VAMC and Twin Ports CBOC. If any clarification from the Veteran is required regarding his dates and places of treatment, contact him for the necessary information. Document for the claims file the dates searched and provided. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 3. After obtaining any outstanding VA and private treatment records, provide the Veteran an appropriate examination to ascertain the current severity and manifestations of his IBS. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records, post-service medical records, and statements. The examiner should report all signs and symptoms necessary for evaluation of the Veteran's IBS under the rating criteria. In particular, the examiner should list any signs or symptoms attributable to this intestinal condition such as diarrhea, constipation, alternating diarrhea and constipation, abdominal distension, anemia, nausea, vomiting, or abdominal pain. The examiner should also describe the severity and frequency of any episodes of bowel distress or any exacerbation of these symptoms. The examiner should finally discuss any weight loss, malnutrition, or other physical findings attributable to this intestinal condition. 4. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2015). 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. 5. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 6. 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 claim must be readjudicated. If the claim remains 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. The Veteran 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 2014). ____________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs