Citation Nr: 1304356 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 09-47 537 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for Crohn's disease. 2. Entitlement to an initial disability rating in excess of 10 percent for mechanical low back pain. 3. Entitlement to total disability based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel INTRODUCTION The Veteran had active duty service from April 1992 to December 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran testified at a Board hearing at the RO in November 2012 before the undersigned Veterans Law Judge. A copy of the transcript of that hearing has been associated with the record on appeal. The issues of entitlement to a higher initial disability rating for mechanical low back strain and entitlement to TDIU 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. FINDINGS OF FACT 1. The Veteran's current symptoms of Crohn's disease had their onset during service and were continuous from separation from service. 2. The Veteran's Crohn's disease is etiologically related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for Crohn's disease have been met. 38 U.S.C.A. §§ 1110, 1112, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this decision, the Board grants service connection for Crohn's disease. As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary. 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). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). 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). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 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). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The Veteran asserts that he has Crohn's disease that is causally or etiologically related to service. Specifically, he asserts that it is related to his complaints of diarrhea and abdominal pain during service. Service treatment records show complaints of diarrhea, gastritis, and abdominal pain. During the hearing before the Board, the Veteran testified that he had additional gastrointestinal symptoms that he treated with over-the-counter medications, to include Pepto Bismal. The Board finds the Veteran's statements competent and credible regarding these additional gastrointestinal symptoms. The Board notes that the Veteran has a current diagnosis of Crohn's disease. Although the disability has been diagnosed as inflammatory bowel syndrome and ulcerative colitis, the Board finds that the Veteran's complaints appear to stem from the same symptoms and etiology with the numerous treating physicians only disagreeing on the title to apply to the disability. The Board uses the designation of Crohn's disease to include his inflammatory bowel syndrome and his ulcerative colitis. The Veteran is competent and credible to testify that his symptoms have been continuous since separation from service. Additionally, a March 1997 VA examination, provided within a few months of separation from service, noted digestive problems since the prior year. The examiner noted symptoms of irritable bowel syndrome. Finally, a private physician noted the Veteran's history and opined that the Veteran should be service-connected for his inflammatory bowel disease in February 2007. The Board finds that the Veteran is competent to testify as to his gastrointestinal symptoms during service and continuously since separation from service. The Board also finds that the private doctor's opinion, relating the Veteran's disability to his service, is competent and credible. Based on this evidence, the Board finds that the Veteran's Crohn's disease had its onset during service. As his Crohn's disease had its onset during service, the Veteran's Crohn's disease is service-connected. ORDER Entitlement to service connection for Crohn's disease is granted. REMAND During the November 2012 hearing, the Veteran reported that his back disability has worsened since the VA examination in January 2008. The Veteran claimed that he has not been able to sleep in a bed in the past few years due to back pain. He also noted that the range of motion findings during the January 2008 examination were not indicative of his current disability level. As the Veteran asserted a worsening of his back disability and it has been more than four years since the most recent VA examination, the Board finds that a new examination is required before a final decision on the merits may be made. As such, VA is required to afford him a contemporaneous VA examination to assess the current nature, extent and severity of his back disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). Thus, the Board has no discretion and must remand this claim. In the present case, the Veteran and his representative have asserted that the Veteran is unable to work due, at least in-part, to his service-connected disabilities, specifically due to his back disability. Where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the Veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (VA to "determine all potential claims raised by the evidence, applying all relevant laws and regulations"); See also Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that an appeal for higher rating includes a claim for TDIU, if reasonably raised by the record). In light of the Court's determination that evidence of unemployability in the context of a rating claim may include a TDIU claim, as well as the Veteran's assertion that his back disability has prevented him from maintaining gainful employment, the Board finds that remand of the issue of TDIU for development by the RO, specifically to provide an examination to determine whether the Veteran is capable of obtaining and maintaining employment, is the appropriate action. Accordingly, the case is REMANDED for the following action: 1. Issue a notice letter that complies with the requirements of 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2012) that includes an explanation as to the information or evidence needed to establish a TDIU claim. 2. Notify the Veteran that he may submit lay statements from individuals who have first-hand knowledge of the nature, extent and severity of his back symptoms, as well as the impact of his conditions on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. After physically or electronically associating any pertinent, outstanding records with the claims folder, schedule the Veteran for an appropriate VA examination to determine the nature, extent, frequency and severity of any orthopedic and neurologic impairment related to or part of the Veteran's back disability. The examiner should identify all thoracolumbar spine orthopedic and neurologic pathology found to be present. The examination should include all indicated tests and studies, to include range of motion studies expressed in degrees and in relation to normal range of motion. The examiner should describe any pain, weakened movement, excess fatigability, and incoordination present; the examiner is asked to consider the ameliorative effects of the Veteran's current medication on his range of motion tests. To the extent possible, the examiner should express any functional loss in terms of additional degrees of limited motion of the Veteran's back, i.e., the extent of the Veteran's pain-free motion. In addition, to the extent possible, the examiner should state whether the back disability has been productive of any incapacitating episodes, defined as periods of acute signs and symptoms that require bed rest prescribed by a physician or treatment by a physician. If so, the examiner should describe the frequency and duration of each reported episode. The examiner must discuss the nature and severity of any radiculopathy or neuropathy found to be present and must also state whether the Veteran has any objective neurologic abnormalities such as bowel or bladder problems, or erectile dysfunction or other neurogenic conditions associated with his low back disability. After all necessary tests are conducted, the examiner must opine as to (1) the impact of the Veteran's service-connected disabilities, to include mechanical low back pain, essential hypertension, and post-traumatic dysfunction of the right ankle, on his ability to work, and (2) whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not that his service-connected disabilities, either alone or in the aggregate, render him unable to secure or follow a substantially gainful occupation. The examiner should provide a complete rationale for all opinions provided, which should be set forth in a legible report. 4. Then readjudicate the appeal, to include adjudicating whether a TDIU is warranted. If any benefit sought remains denied, the Veteran and his representative must be furnished a Supplemental Statement of the Case and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the 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 Supp. 2012). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs