Citation Nr: 1237456	
Decision Date: 11/01/12    Archive Date: 11/09/12

DOCKET NO.  10- 14 264	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for a bleeding ulcer in the colon, to include as secondary to service-connected degenerative joint disease, lumbar spine.

2.  Entitlement to an increased rating for degenerative joint disease, lumbar spine, currently rated 10 percent disabling. 


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

D. Johnson, Counsel


INTRODUCTION

The Veteran served on active duty from October 1981 to November 1996.

This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (hereinafter VA) Regional Office (RO) in Waco, Texas.  

The Veteran testified before a Decision Review Officer at a hearing held at her local RO in January 2011.  A transcript of the hearing is of record.

The issue of entitlement to service connection for an increased rating for lumbar spine degenerative joint disease 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.


FINDING OF FACT

The preponderance of the evidence shows that the Veteran's colon ulcer was caused by use of nonsteroidal anti-inflammatory drugs (NSAIDs) for treatment of service-connected lumbar spine degenerative joint disease.


CONCLUSION OF LAW

A colon ulcer was proximately due to, or the result of service-connected lumbar spine degenerative joint disease.  38 U.S.C.A. §§ 1110, 1154(a), 5103, 5107 (West 2002); 38 C.F.R §§ 3.102, 3.303, .3.310 (2011).

REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist

In this decision, the Board grants service connection for a colon ulcer disability.  As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary. 

II. Service Connection

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).  In addition to the elements of direct service connection, service connection may also be granted on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310 (a).  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).  Service connection may also be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. §3.303(d). 

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77.  The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  

Service treatment records are negative for a colon ulcer.  

A VA spine examination report dated in June 2004 shows the Veteran reported use of over-the-counter medications to help alleviate the constant pain caused by her service-connected lumbar spine degenerative joint disease.  

Post-service VA treatment records show Naproxen was listed on the Veteran's active outpatient medication list, for treatment of arthritis.  The Veteran underwent a colonoscopy in February 2005 and was found to have a non-bleeding cecal arteriovenous malformation (AVM), sigmoid hyperplastic polyp.  Naproxen, for treatment of arthritis, is noted to have remained on the Veteran's active outpatient medication list following that procedure and through 2007.

Beginning in February 2008, the treatment records show a complaint of malaise, fatigue, and rapid heart rate over the past few months, in addition to intermittent episodes of abdominal pain, and recent blood in the stools.  Upon evaluation, the Veteran was found to have iron deficiency anemia and required a blood transfusion.  Due to her medical history, including positive recent NSAIDs use, a gastrointestinal bleed was suspected and a colonoscopy was performed that month.  The colonoscopy revealed an 8 millimeter (mm) ulcer in the proximal colon (right), which upon biopsy excision, began to bleed.  Following the procedure, the Veteran was instructed to continue avoiding use of NSAIDs.  The colonic ulcer was noted to possibly be secondary to non-steroidal anti-inflammatory drug use.  

During an August 2008 VA examination, for evaluation of the Veteran's service-connected hemorrhoids, an examiner provided a diagnosis of right colon 8 mm ulcer and terminal ileal area chronic active inflammation secondary to NSAIDs use (bleeding after biopsy and controlled per gastrointestinal endoscopist's report).  

Finally, recent VA treatment records show that the Veteran continues to receive iron supplementation treatment.  Her medical problem lists include diagnoses of anal ulcer, blood in stool, iron deficiency anemia, and colon polyp.  

Based on the evidence, the Board finds that the service connection is warranted for a colon ulcer.  The records reflect, and the Veteran competently testified, that NSAIDs were used to treat the Veteran's service-connected lumbar spine, degenerative joint disease.  The Veteran has also competently and credibly testified that her VA physician advised her to discontinue use of NSAIDs after she had to undergo the noted procedures in February 2008.  The VA clinicians that performed the February 2008 colonoscopy have also indicated that the colon ulcer was possibly secondary to NSAIDs use.  Likewise, the August 2008 VA examiner has opined that the colon ulcer was secondary to the Veteran's NSAIDs use, based upon her review of the claims file.  The Board finds that these clinicians' statements support a finding of causation in this case, and there are no medical opinions to the contrary.

A claim will be denied only if the preponderance of the evidence is against it.  38 U.S.C.A. § 5107(b).  In this case, the preponderance of the evidence reflects that the Veteran's use of NSAIDs to treat her service-connected lumbar spine degenerative joint disease caused her to develop an ulcer in her colon.  Accordingly, service connection for a colon ulcer is granted.

ORDER

Service connection for a bleeding colon ulcer, as secondary to service-connected lumbar spine degenerative joint disease, is granted subject to the law and regulations governing payment of monetary benefits.



REMAND

The Veteran seeks a higher rating for her service-connected lumbar spine degenerative joint disease and indicates that additional treatment records are available at the VA Medical Center (VAMC) in Temple, Texas.  See, the April 2010 Substantive Appeal and January 2011 hearing transcript.  The most recent VA treatment records in the claims file are current as July 2009, and more recent records are not available for the Board's review via Virtual VA.  Thus on remand, any additional, pertinent VA treatment records should either be made accessible on Virtual VA or be printed and added to the file.  The RO should also contact the Veteran and ask that she identify any additional, pertinent non-VA treatment records that are outstanding.  See 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992).

Accordingly, the case is REMANDED for the following action:

1.  The RO should contact the Veteran and ask her to identify any additional sources of VA and non-VA treatment for her lumbar spine degenerative joint disease.  After securing the necessary authorizations for release of this information, the RO should seek to obtain copies of all records referred to by the Veteran not already of record, including any pertinent VA treatment records dated since July 2009.  The RO must make at least two requests to any custodian of private records in an effort to obtain such records, unless it is made evident by the first request that a second request would be futile in obtaining such records.  Any negative response should be in writing and associated with the claims file.

2.  Then, notify the Veteran that she may submit lay statements from herself as well as from individuals who have first-hand knowledge of the symptoms of her lumbar spine degenerative joint disease.  She should be provided an appropriate amount of time to submit this lay evidence.

3.  Then, after undertaking any additional development as a review of the evidence obtained may indicate, readjudicate the appeal.  If any benefit sought remains denied the Veteran should be issued an SSOC which addresses actions taken since the issuance of the last SSOC and given the opportunity to respond, and the claim should thereafter be returned to the Board, if in order.

The appellant 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. 2011).



______________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs