Citation Nr: 1208400 Decision Date: 03/05/12 Archive Date: 03/16/12 DOCKET NO. 08-12 673 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a bowel disorder/Campylobacter enterocolitis. 2. Entitlement to service connection for a bronchial/respiratory disorder. 3. Entitlement to service connection for decreased memory. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The Veteran had active duty from January to December 1981, November 1990 to May 1991, and from August 2004 to August 2006. He also had several periods of active duty for training, in June 1985, August 1986, July to August 1988, October 1989, and June 1990. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the St. Louis, Missouri, VA Regional Office (RO). The Board remanded these claims in January 2010 so that additional development of the evidence could be conducted. As discussed below, the Board finds that there was not substantial compliance with its remand with respect to those two issues addressed herein in the REMAND portion below and that it may not therefore proceed with a determination as to these issues at this time. See Stegall v. West, 11 Vet. App. 268 (1998). The issues of service connection for a bronchial/respiratory disorder and for decreased memory are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, bowel disorder and Campylobacter enterocolitis are related to active duty service. CONCLUSION OF LAW Bowel disorder and Campylobacter enterocolitis were incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.303 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties To Notify And Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). 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. Those five elements 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Concerning the appeal of the service connection claim now before the Board, seeking service connection for a bowel disorder/Campylobacter enterocolitis, the Veteran was provided notice that met these requirements in a letter dated in August 2006. This letter met the timing requirement as it was sent before the claim was adjudicated by the RO in March 2007. Moreover, the content of the notice, including enclosures "How You Can Help and How VA Can Help You" and "What the Evidence Must Show -- Service connected comp," provided to the Veteran complied with some of the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The March 2007 letter also included notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded (see Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006)). As the Board's decision to grant service connection for a bowel disorder/Campylobacter enterocolitis herein constitutes a complete grant of this specific benefit sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations. The purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his service connection claim. He has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to the VA notice. There is no evidence of any failure on the part of VA to further comply with the duty to notify that reasonably affects the outcome of this case. The duty to assist the appellant has also been satisfied in this case. Available post-service medical records are in the claims file and were reviewed by both the RO and Board in connection with the appellant's claim. The appellant has not informed VA of any obtainable existing medical records which may be helpful in the adjudication of his claim. VA is not on notice of any evidence needed to decide the claim which has not been obtained. A VA examination was obtained with regard to the claim for service connection for a bowl disorder/Campylobacter in December 2010. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the December 2010 VA examination and opinions obtained in this case are adequate, as they were predicated on a reading of the service and post-service medical records in the Veteran's claims file. The examination considered all of the pertinent evidence of record, to include the Veteran's service and post-service records and provided a reason for the opinion stated, considering the Veteran's history and the records reviewed. There is adequate medical evidence of record -- including private medical treatment records -- to make a determination in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the service connection issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claim and did in fact participate. Washington v. Nicholson, 21 Vet. App. 191 (2007). Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. In addition, all relevant, identified, and available evidence has been obtained. Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. Laws and Regulations Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also 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 order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr, 21 Vet. App. at 309. The Board notes that the special provisions pertaining to undiagnosed illnesses are not applicable to a known clinical diagnosis. See 38 C.F.R. § 3.317 (2011). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54 . In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's treatment records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d. 1313 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Finally, in a claim for service connection, the ultimate credibility or weight to be accorded evidence must be determined as a question of fact. The Board determines whether (1) the weight of the evidence supports the claim, or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim: the appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert. Factual Background Private inpatient records, dated in September 1995, reflect complaints of feverish chills, nausea, vomiting and diarrhea, and a history of amoebic dysentery occurring in 1991 in Saudi Arabia during the Gulf War was noted. An impression of febrile illness characterized by nausea, vomiting and diarrhea, with new onset of bloody diarrhea associated with increasing leukopenia and thrombocytopenia was entered, laboratory testing was noted to be positive for Campylobacter, and the diagnosis was Campylobacter enterocolitis. A November 2004 service treatment record reflects a relevant diagnosis of gastroesophageal reflux disease (GERD). Relevant complaints in November 2006 included upset stomach. In November 2007, blood in the stool was reported, and the assessments included GERD. As part of the Board's January 2010 remand, the Veteran was to be afforded a VA examination so that, in pertinent part, an opinion (stated in the positive or negative) could be provided addressing the medical question of whether a bowel disorder and/or Campylobacter enterocolitis was etiologically related to in-service disease or injury, to include as due to undiagnosed illness, or was otherwise related to service. This examination was conducted in December 2010. Review of the December 2010 VA Gulf War examination report shows that the Veteran gave a history of a bowel disorder and/or Campylobacter enterocolitis with a date of onset in 1995. As noted, medical evidence concerning this claimed disorder includes private inpatient records, dated in September 1995, showing complaints of feverish chills, nausea, vomiting and diarrhea, and a history of amoebic dysentery occurring in 1991 in Saudi Arabia during the Gulf War was noted. An impression of febrile illness characterized by nausea, vomiting and diarrhea, with new onset of bloody diarrhea associated with increasing leukopenia and thrombocytopenia was entered, laboratory testing was noted to be positive for Campylobacter, and the diagnosis was Campylobacter enterocolitis. A November 2004 service treatment record includes a relevant diagnosis of GERD. In November 2007, blood in the stool was reported, and the assessments included GERD. A January 2008 private operative report shows that the Veteran had a post-operative diagnosis of colonic polyp and diverticulosis. An October 2008 private history and physical report shows that the Veteran presented in the emergency room with an acute abdomen. The reporting physician commented, before taking the Veteran to the operating room, that he suspected the presence of perforated diverticulitis. The Veteran's wife, a registered nurse, commented as part of a VA-Form 21-4138, dated in September 2010, that the Veteran had suffered from gastrointestinal symptoms since the Gulf War. She noted that he had undergone a colonoscopy in January 2008, where a few polyps were removed. She added that he later complained of abdominal pain with blood in his stool in October 2008, and that he was given medication for treatment of GERD. The December 2010 VA examiner, in providing a diagnosis of bowel disorder and/or Campylobacter enterocolitis, commented that the Veteran was no longer symptomatic. The examiner, as part of a March 2011 addendum, noted that the Veteran's dysentery and Campylobacter enterocolitis were resolved without residuals. She added that his dysentery and Campylobacter enterocolitis were at least as likely as not caused by or a result of his military service. As rationale for this opinion, she observed that the Veteran received treatment while in the service for dysentery/Campylobacter enterocolitis. The Board again notes that the Veteran filed his claim for service connection for a bowel disorder and/or Campylobacter enterocolitis in April 2004. Regarding this, the Board notes that in McClain v. Nicholson, 21 Vet App 319 (2007), the United States Court of Appeals for Veterans Claims (Court) held that the requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even though the disability resolves prior to the Secretary's adjudication of the claim. Analysis After a careful review of the evidence, the Board resolves reasonable doubt in the Veteran's favor and finds that a bowel disorder and/or Campylobacter enterocolitis was incurred in active service. Service medical records document the presence GERD in November 2004. The Veteran was also diagnosed in December 2010 by a VA examiner with bowel disorder and/or campylobacter enterocolitis. The examiner further commented that the Veteran's dysentery and Campylobacter enterocolitis was at least as likely as not caused by or the result of his military service. In support of this opinion the examiner commented that the Veteran received treatment while in the service for dysentery/Campylobacter enterocolitis. The Board also observes that despite the fact that the VA examiner commented in December 2010 that the Veteran's bowel disorder and/or Campylobacter enterocolitis was no longer symptomatic, the examiner also provided a diagnosis of bowel disorder and/or Campylobacter enterocolitis. Thus, the Board finds that the record establishes the presence of a current disability. The Board also finds useful in granting this claim the assertions made by the Veteran's wife, a registered nurse, where she has asserted that the Veteran has suffered from gastrointestinal symptoms since the Gulf War. Accordingly, resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for a bowel disorder/Campylobacter enterocolitis is warranted. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a bowel disorder/Campylobacter enterocolitis is granted, subject to those provisions governing the payment of monetary benefits. REMAND As noted, the Board previously remanded the claims seeking service connection for a bronchial/respiratory disorder and decreased memory in January 2010. To this, the Board notes that the Court has held "that a remand by this Court or the Board confers on the veteran or other claimant, as a matter of law, a right to compliance with the remand orders." Stegall, 11 Vet. App. at 271. As such, compliance with the terms of the remand - not fully and sufficiently accomplished following the January 2010 remand -- is necessary prior to further appellate review, and if not, "the Board itself errs in failing to ensure compliance." Id. Concerning the Veteran's claims seeking entitlement to service connection for a bronchial/respiratory disorder and for decreased memory, the Board notes that the Veteran initially sought service connection for these claimed disorders in January 2004 -- see VA Form 21-526. The Board also observes that the January 2010 remand provided a comprehensive overview of the factual background as well as the pertinent laws and regulations pertinent to these claims. As part of a June 2011 statement (see VA Form 21-4138), the Veteran informed VA that "new information" was available at the VA "Gene Taylor" outpatient clinic in Mt. Vernon, Missouri; VA outpatient clinic in Branson, Missouri; and the VA Medical Center in Fayettesville. Review of the claims folder shows that records from the cited VA medical facilities located in Branson, Missouri and Fayetteville [Arkansas] have been associated therein. Records from the VA outpatient clinic located in Mt. Vernon, Missouri have not been so associated. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of that claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). As such, complete medical records associated with treatment afforded the Veteran at the VA outpatient clinic (Gene Taylor) in Mt. Vernon, Missouri need be associated with the record. 38 C.F.R. § 3.159(c)(2) (2011). Also indicated as part of the Board's January 2010 remand, it was observed that a February 2005 letter from the VA Healthcare System reflected that the Veteran participated in a research study named, "Neuropsychological functioning in Gulf War veterans exposed to pesticides and pyridostigmine bromide." It was also observed that records pertaining to the Veterans participation in the study had not been associated with the claims file. As a result, the remand ordered the following development to take place: 3. The AOJ should obtain and associate with the claims file, copies of all relevant up-to-date VA records not already associated with the claims file, to include the records in association with the Veteran's participation in a Persian Gulf War study. Review of the evidence associated with the Veteran's claims folder following January 2010 does not show that this development was done. Stegall. The record also reflects that in June 2011 the AMC issued a supplemental statement of the case (SSOC) to the Veteran. However, after the issuance of the June 2011 SSOC additional pertinent private medical records were received by VA in August 2011 from Cox South Hospital. Other records were received by VA in October 2011; these include a October 2011 VA primary care physician note which includes attention-deficit/hyperactivity disorder NOS and cough (since he served oversees). The Veteran has not waived consideration of the evidence by the RO. See 38 C.F.R. § 20.1304 (2011). Since this case must be remanded anyway, the Board will instruct the RO to consider this evidence on remand and issue an SSOC, rather than attempt to obtain the Veteran's waiver of his right to RO consideration of the additional evidence in the first instance. See 38 C.F.R. §§ 19.31, 19.37 (2011). As part of the Board's January 2010 remand, the Veteran was to be afforded a VA examination so that, in pertinent part, an opinion (stated in the positive or negative) could be provided addressing the medical question of whether a bronchial/respiratory disorder or any disorder manifested by decreased memory was etiologically related to in-service disease or injury, to include as due to undiagnosed illness, or was otherwise related to service. This examination was conducted in December 2010. Concerning the Veteran's claim seeking service connection for a bronchial/respiratory disorder, as noted as part of the Board's January 2010 remand, the impression of a July 1994 VA chest x-ray examination was no active pulmonary disease. In addition, in a July 2006 post-deployment health assessment record, the Veteran indicated that he had been exposed to motor vehicle exhaust fumes, solvents, and paints, and denied having or having had difficulty breathing. Relevant complaints in November 2006 included exertional shortness of breath. The December 2010 VA examiner, in providing a diagnosis of bronchial/respiratory disorder, noted that the Veteran had a constant persistent daily productive cough. Pulmonary functioning testing (PFT) was noted to have been accomplished. While the report of PFT testing is included in the claims file, dated the same day the Veteran was examined by VA, the PFT report fails to include a "PFT Interpretation." In other words, while the Veteran was noted to have made an excellent effort in the course of the pulmonary testing, and coughed a lot during the laboratory testing, a diagnosis was not provided. The VA examiner, as part of a March 2011 addendum, noted that the Veteran had no existing respiratory disease. She added that it was less likely as not that the Veteran's claimed bronchial condition was caused by or the result of military service. The examiner further commented that the Veteran was not being treated for any type of obstructive or constrictive airway disease. The addendum's indication that there is no airway disease is contradictory to the previously diagnosed bronchial/respiratory disorder. On remand, PFT findings need to be included in the claims file. Also, the examiner should provide an opinion as to whether it is at least as likely as not that since January 2004 (the date of the Veteran's claim for service connection was received by VA) that any identified bronchial/respiratory disorder is related to service, to include as due to undiagnosed illness, or is otherwise related to service. McClain. As pertaining to the Veteran's service connection claim for decreased memory, the Board observed in January 2010 that a November 2004 service treatment record reflected a diagnosis of attention deficit disorder. A November 2007 record included an assessment of positive "TBI" [traumatic brain injury] screening. The VA examiner who conducted the December 2010 examination supplied a diagnosis of decreased memory. It was also noted that this memory loss, reported also by the Veteran's wife and family, adversely affected the Veteran's usual daily activities. Specifically, it was reported that the Veteran had difficulty in remembering subject material in association with his vocational rehabilitation schooling. In a March 2011 addendum, the examiner, in supplying a diagnosis of attention deficit hyperactive disorder (ADHD), opined that the ADHD was not caused by or the result of military service. She added that ADHD was not a disease entity. However, there was no discussion as to whether the decreased memory, diagnosed in December 2010, is due to ADHD or to a diagnosed or undiagnosed illness. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain and associate with the claims file all VA treatment records not already obtained from the outpatient clinic (Gene Taylor) in Mt. Vernon, Missouri. In addition, efforts should be undertaken to obtain and associate with the claims file copies of all records in association with the Veteran's participation in a Persian Gulf War study. Specifically, records associated with those mentioned as part of a February 2005 letter from the VA Healthcare System which referred to the Veteran's participation in a research study named "Neuropsychological functioning in Gulf War veterans exposed to pesticides and pyridostigmine bromide." Efforts to obtain these records should only end if they do not exist or further efforts to obtain them would be futile. 38 C.F.R. § 3.159(c)(2). If the records are unavailable, the claims file must be properly documented and the Veteran so informed in writing. 2. Thereafter, the claims file must be made available to and reviewed by the VA advanced practice nurse who conducted the December 2010 VA Gulf War examination and provided the March 2011 examination addendum. If she is not available, the Veteran's claims file must be made available to and reviewed by another appropriate medical professional. The examiner should provide a medical opinion that clearly specifies whether it is at least as likely as not that any currently identified bronchial/respiratory disorder, and/or any disorder manifested by decreased memory -- or such disorder shown to have been diagnosed during the appeal period (from January 2004), is related to the Veteran's service, to include as due to undiagnosed illness, or is otherwise related to service. The examiner should also provide an interpretation concerning the PFT testing accomplished in December 2010. Note: The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. A clear rationale for all opinions provided would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2011), copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. To help avoid future remand, the RO/AMC must ensure that the required actions have been accomplished in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, corrective action should be undertaken before the claims file is returned to the Board. See Stegall. 4. After completing the required actions, and after conducting any additional development necessary based on the information obtained, the RO/AMC should readjudicate the Veteran's two service connection claims. If the benefit sought on appeal remains in any respect denied, the Veteran and his representative should be issued a SSOC -- which includes consideration of all evidence associated with the record following the issuance of the June 2011 SSOC -- and given an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matters the Board have remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs