Citation Nr: 0614134 Decision Date: 05/15/06 Archive Date: 05/25/06 DOCKET NO. 04-12 448 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to service connection for keratoconus. 2. Entitlement to service connection for a low back disability. 3. Entitlement to service connection for irritable bowel syndrome, claimed to be associated with an undiagnosed illness. 4. Entitlement to service connection for depression, claimed as secondary to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. J. Vecchiollo INTRODUCTION The veteran served on active duty from August 1988 to March 1992. This matter came before the Board of Veterans' Appeals (Board) on appeal from a August 2003 rating decision from the Baltimore, Maryland, Department of Veterans Affairs (VA) Regional Office (RO). The issue of entitlement to secondary service connection for depression is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The veteran served in the Southwest Asia theater of operations during the Persian Gulf War. 2. Keratoconus began in service. 3. The veteran's current low back disability is related to service. 4. There is no medical explanation for the etiology of the veteran's irritable bowel syndrome; and irritable bowel syndrome is presumed to have been caused by Persian Gulf service. CONCLUSIONS OF LAW 1. The veteran's keratoconus was incurred in service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2005). 2. The veteran's low back disability was incurred in service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2005). 3. The veteran's irritable bowel syndrome is presumed to have been incurred during his Persian Gulf Service. 38 U.S.C.A. §§ 1110, 1117 (West 2002 & Supp 2005); 38 C.F.R. §§ 3.303, 3.317 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist Regarding the claims of service connection for keratoconus, irritable bowel syndrome, and a low back disability, the Board's decision herein constitutes a complete grant of the benefit sought on appeal, no further action is required to comply with the VA duty to notify and assist the veteran regarding his claim. See generally, 38 U.S.C.A. § 5100, 5102, 5103, 5103A, 5107; (West 2002 & Supp. 2005); 38 C.F.R. 3.102, 3.156(a), 3.159, 3.326 (2005). Recently, in Dingess/Hartman v. Nicholson, Nos. 01-1917 & 02- 1506 (U.S. Vet. App. March 3, 2006), the Court held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim which include: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The 4th and 5th elements were not addressed in the notice letters. Once the RO effectuates the Board's grant, the RO can cure any notice defect with respect to these elements. Therefore, despite the inadequate notice provided to the veteran concerning these elements, the Board finds no prejudice to the veteran in proceeding with the issuance of the grant of his service connection claims. Id. II. Service-Connection Claims Service connection may be established for a disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b) (2005). 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) (2005). Compensation may be paid to a Persian Gulf veteran who exhibits objective indications of chronic disability due to undiagnosed illnesses or combination of undiagnosed illnesses that became manifest either during active duty in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of 10 percent or more following such service. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. Service connection may be granted when the evidence establishes: (1) that he or she is a Persian Gulf veteran; (2) who exhibits objective indications of chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed in paragraph (b) of 38 C.F.R. § 3.317; (3) which became manifest either during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more; and (4) that such symptomatology by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. There must be objective signs that are perceptible to an examining physician and other non-medical indicators that are capable of independent verification. There must be a minimum of a 6-month period of chronicity. There must be no affirmative evidence that relates the undiagnosed illness to a cause other than being in the Southwest Asia theater of operations during the Persian Gulf War. 38 U.S.C.A. § 1117; 38 C.F.R. 3.317. If signs or symptoms have been medically attributed to a diagnosed (rather than undiagnosed) illness, the Persian Gulf War presumption of service connection does not apply. VAOPGCPREC 8-98. The Board notes that the Persian Gulf War provisions of 38 U.S.C.A. § 1117 were amended, effective March 1, 2002. In pertinent part, the new law provides that, in addition to chronic disabilities from undiagnosed illness, service connection may also be given for medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs and symptoms, as well as for any diagnosed illness that the VA Secretary determines by regulation warrants a presumption of service connection. A. Keratoconus The veteran did not receive a diagnosis of this condition while in service. He was first diagnosed with the condition in the fall of 2001. But the examiner who conducted the May 2003 VA eye examination noted that the usual age of onset for the condition was approximately 15 to 25 years of age, and that the veteran was in service from ages 18 to 22. The examiner opined that, it is at least as likely as not, that the condition existed in a subclinical state while the veteran was in service. The veteran's private physician, James T. Finegan, Jr., M.D., confirmed this opinion in a June 2004 letter. The evidence is in equipoise as to whether the veteran's keratoconus was incurred in service. The Board must therefore apply the benefit of the doubt doctrine. In so doing, the Board finds that keratoconus was incurred in service. B. Low Back Disability The veteran's service medical records indicate that the veteran complained of back strain while playing basketball in June 1990. The condition was noted to have been consistent with an acute lumbosacral strain with spasm. The veteran sustained a pulled muscle in his back while playing basketball in April 1991. The condition was noted to have been consistent with a paravertebral muscle strain with spasm. In March 1992, lumbosacral spine X-rays were requested due to the previous basketball injuries. The X- rays were normal. Subsequent to service, a private chiropractor, in a letter dated in May 2002 stated that the veteran was under his care of chronic low back pain from August 1995 to June 1996. In December 2001, the veteran sought treatment at a private facility for low back pain. He stated that he has had low back pain since an inservice injury. A private X-ray dated in December 2001 of the lumbar spine was normal. Subsequently, a diagnosis of chronic musculoligamentous strain of the lumbosacral spine dating back to his days in the military was given. A VA Persian Gulf war examination was conducted in April 2003. The examiner stated that he reviewed the veteran's claims file and medical records. The veteran stated that he injured his low back in the military while playing basketball. The examiner stated that it was more likely than not that that veteran's low back pain was associated with a somatic disorder secondary to PTSD and depression. The RO requested another opinion, and in a July 2003 VA digestive diseases examination report, the examiner stated that the veteran's low back pain was not likely related to his inservice complaints. The examiner noted that the inservice injuries were diagnosed as muscle strain secondary to physical activities, and by definition, a strain is an acute muscular injury which virtually always resolves without additional therapy without two to six weeks. It was also noted that the veteran's low back X-rays were normal and the veteran does not support a complaint of post-traumatic spinal disease. The veteran requests service connection for his current low back disability and notes that his service medical records document several low back injuries, demonstrating that the condition began in service. He, in essence, claims that he has had problems with his back since service. The Board finds his assertion that he has had back problems since service to be credible. The determinative question in the instant case is whether the veteran's current low back disability is related to the incidents of back problems in service. The Board finds that the evidence addressing this question is in equipoise. In December 2001, a private doctor stated, in essence, that the veteran's current back disability was associated with the problems he had in service. Whereas, in April 2003, a VA examiner stated that the veteran's back condition was not related to the episodes he had in service. The Board finds that both medical reports are competent. As such, the Board, in applying the benefit of the doubt doctrine, grants the claim of service connection for a low back disability. C. Irritable Bowel Syndrome The veteran's service medical records show that he complained of a stomachache in service. A VA Persian Gulf examination was conducted in May 2003. The veteran claimed that he and many fellow servicemen developed chronic diarrhea, constipation, vomiting, and intestinal generalized arthralgia while serving in the Persian Gulf. The examiner noted that private post-service upper gastrointestinal series, an abdominal ultrasound, and an air contrast barium study conducted in 2002 were normal. Subsequently in 2002, an upper gastrointestinal endoscopy with biopsy noted erosive antritis. The examiner opined that there was no objective evidence of an undiagnosed illness, and that the veteran's irritable bowel syndrome was more likely than not connected with his depression and PTSD. The examiner who conducted the July 2003 VA digestive conditions examination stated that depression has been known to cause many somatic symptoms of the gastrointestinal region, namely diarrhea and constipation; and it is more likely than not that the veteran's psychological stresses caused the irritable bowel syndrome. The Board notes that there is no competent evidence the veteran has irritable bowel syndrome on a direct basis or any undiagnosed gastrointestinal disability due to his Persian Gulf War service under the provisions of 38 C.F.R. § 3.317. The Board also notes that Persian Gulf veterans who contracts a medically unexplained chronic multisymptom illnesses, such irritable bowel syndrome, are entitled to service connection for the condition. (Emphasis added.) In this case, VA medical personnel have attributed the veteran's gastrointestinal complaints to his depression. The veteran's private physician, Raymond S. Buch, M.D., in an August 2004 letter, stated that the current literature does not support the contention that irritable bowel syndrome is caused by depression. The private physician opined that the veteran's irritable bowel syndrome was a precursor to his depression and not vice-versa, as the VA personnel have opined. There is reasonable doubt as to etiology of the veteran's irritable bowel syndrome as there is a competent opinion by a VA physician that depression is the cause of the condition and a competent opinion against this proposition. As the evidence is in relative equipoise, and as the benefit of the doubt must be resolved in favor of the veteran; the Board must find that depression was not the cause of the veteran's irritable bowel syndrome. See 38 U.S.C.A. § 5107; Gilbert, Alemany, supra. Therefore, as there is no other competent opinion of another etiology of the veteran's irritable bowel syndrome, the Board must conclude that the condition is medically unexplained, and therefore, service connection is warranted on a presumptive basis based on Persian Gulf service. See 38 C.F.R. § 3.317(a)(2)(i)(B)(2), supra. ORDER The claim for service connection for high blood pressure is granted. The claim for service connection for a low back disability is granted. The claim for service connection for irritable bowel syndrome is granted. REMAND The Veterans Claims Assistance Act (VCAA) is codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West. 2002 & Supp. 2005). The regulations implementing the VCAA are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2005). The Act and the implementing regulations are applicable to the veteran's claim. The veteran has not been sent any VCAA notice pertaining to the issue of entitlement to service connection for depression, claimed as secondary to service-connected disabilities. During the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, Nos. 01-1917 and 02-1506, which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. In the present appeal, the appellant was provided with notice of what type of information and evidence was needed to substantiate his claim for service connection, but he was not provided with notice of the type of evidence necessary to establish a disability rating or effective date for the disabilities on appeal. As these questions are involved in the present appeal, this case must be remanded for proper notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that informs the veteran that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded, and also includes an explanation as to the type of evidence that is needed to establish both a disability rating and an effective date. Remand is also necessary for the RO to reconsider this secondary service connection issue in light of the grants of service connection for keratoconus, a low back disability and irritable bowel syndrome. The Board is unable to adjudicate the veteran's claim without violating the veteran's statutory and regulatory procedural rights by addressing a question not properly considered by the RO. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). In addressing the etiology of the veteran's depression, the veteran should be scheduled for a VA examination. Accordingly, this case is REMANDED for the following actions: 1. The RO should send the veteran and his representative a letter with respect to the issue of service connection for depression, to include as secondary to service-connected disabilities that complies with the notification and duty to assist requirements of the VCAA. The letter should include notice of the type of information necessary to substantiate a disability rating and assign an effective date-in the effect that the claim of service connection is granted. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2005); Dingess/Hartman v. Nicholson. 2. The veteran should be scheduled for a VA psychiatric examination for the purpose of determining the nature and etiology of the veteran's depression. The claims file should be made available to and reviewed by the examiner in giving his opinion. The opinion should be based on examination findings, historical records, and medical principles. The examiner should give a full rationale, as to the etiology of the veteran's depression, including the likelihood that it was medically caused by any service- connected disability. 3. The RO should then readjudicate the veteran's claim for entitlement to service connection for depression based on service-connected disabilities. If the action taken is adverse to the veteran, he and his representative should be furnished a supplemental statement of the case that contains a summary of the relevant evidence submitted since the supplemental statement of the case issued in November 2004, and a citation and discussion of the applicable laws and regulations. He and his representative should also be afforded the opportunity to respond to that supplemental statement of the case before the claim is returned to the Board, if appropriate. The purpose of this REMAND is to afford due process; it is not the Board's intent to imply whether the benefits requested should be granted or denied. 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). ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs