Citation Nr: 1314548	
Decision Date: 05/02/13    Archive Date: 05/15/13

DOCKET NO.  05-25 916	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUES

1.  Entitlement to service connection for a bilateral foot disorder.

2.  Entitlement to service connection for a bilateral knee disorder.

3.  Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to the service-connected back disability.

4.  Entitlement to service connection for a gastrointestinal disorder, to include gastroesophageal reflux disease.


REPRESENTATION

Appellant represented by:	The American Legion



ATTORNEY FOR THE BOARD

L.M. Yasui, Counsel


INTRODUCTION

The Veteran served on active duty from February 1979 to November 1980.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi.

In January 2008, the appeal was remanded for further development.  In December 2009, the Board denied the claims, as well as the claim of service connection for a chronic genitourinary disorder.  The Veteran appealed the Board decision to the Veterans Claims Court.  In a November 2011 memorandum decision, the Court vacated and remanded the December 2009 Board decision.  

Pursuant to the November 2011 memorandum decision, the Board remanded the matters for further development in a July 2012 decision.  The matter has properly been returned to the Board for appellate consideration.  See Stegall v. West, 11 Vet. App. 268 (1998).  Additional discussions regarding the RO's compliance with the July 2012 Board Remand are included in both the duties to notify and assist and Remand sections below.

After reviewing the contentions and evidence of record, the Board finds that the issues on appeal are more accurately stated as listed on the title page of this decision.

In evaluating this case, the Board has not only reviewed the physical claims file, but has also reviewed the Veteran's file on the "Virtual VA" system to ensure a complete assessment of the evidence.

As mentioned in the July 2012 Board Remand, a review of the record on appeal reveals that in August 2011 the Veteran raised claims of service connection for bilateral athletes' foot and prostate cancer, as well as a claim for an increased rating for a low back disability; however, these claims have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them and they are referred to the AOJ for appropriate action.

The issues of service connection for acquired psychiatric and chronic gastrointestinal disorders 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.  A current bilateral foot disorder was not shown to be chronic in service nor is it related to service. 

2.  A current bilateral knee disorder was not shown to be chronic in service nor is it related to service. 


CONCLUSIONS OF LAW

1.  A chronic bilateral foot disorder was not incurred in or aggravated by service.  38 U.S.C.A. §§ 1131, 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303 (2012).

2.  A chronic bilateral knee disorder was not incurred in or aggravated by service.  38 U.S.C.A. §§ 1131, 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012).  

Under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, subsequent manifestations of the same chronic disease or injury at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes.  For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.

Where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned, continuity of symptoms is required.  38 C.F.R. § 3.303(b).  The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013).

Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (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 disorder and the post-service symptomatology.  Clyburn v. West, 12 Vet. App. 296, 302 (1999).

In this case, the Veteran has been diagnosed with bilateral patellofemoral syndrome, metatarsalgia, and plantar fasciitis.  None of the claims on appeal are listed as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply.  Similarly, none of the claims on appeal are listed in 38 C.F.R. §§ 3.307, 3.309(a); therefore, the one-year presumption does not apply.  

Finally, service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  This has been interpreted as a three-element test based on nexus: (1) the existence of a present disability; (2) 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 in or aggravated by service.  See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009).  

In this decision, the Board has considered the lay evidence as it pertains to the issues.  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).  

Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").  

"Competent medical evidence" means that which is provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  38 C.F.R. § 3.159(a)(1).  "Competent lay evidence" is any evidence not requiring that the proponent have specialized education, training or experience, but is provided by a person who has the knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994).  

A veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses.  Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (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).  

The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms").  

In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment.  Caluza v. Brown, 7 Vet. App. 498 (1995).  

With respect to evaluating the medical evidence, generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file.  Prejean v. West, 13 Vet. App. 444, 448-9 (2000).  

Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data.  Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data).  The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record.  Miller v. West, 11 Vet. App. 345, 348 (1998).

Medical evidence that is speculative, general or inconclusive in nature cannot support a claim.  Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996).  A physician's statement framed in terms such as "may" or "could" is not probative.  See Warren v. Brown, 6 Vet. App. 4, 6 (1993).

A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment.  See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis).

The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Board has reviewed all of the evidence in the Veteran's claims folder.   Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record.  Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims.  

The Veteran seeks entitlement to service connection for a bilateral foot and bilateral knee disorder, which he alleges were sustained while in the Marine Corps.  As noted above, post-service evidence reflects diagnoses of bilateral patellofemoral syndrome, metatarsalgia, and plantar fasciitis.  Therefore, foot and knee disorders are currently shown and the first element has been met.

With respect to the bilateral foot disorder, the service treatment records show a diagnosis of flatfoot in March 1979, complaints of left ankle pain following a sprain in March 1979, and diagnosis of right ankle arthralgia in July 1979.  The Veteran complained of bilateral foot pain in July 1980; however, X-rays were within normal limits.  Moreover, there is no further mention of a foot disorder in the service treatment records.  

Indeed, in his October 1980 Report of Medical Examination at discharge, the Veteran had a normal clinical evaluation of his feet.  These records, as a whole, tend to show that previous foot disorders noted in service were not chronic.

With respect to the bilateral knee disorder, the service treatment records show complaints of bilateral knee pain in July 1980; however, X-rays of the bilateral knees at the time were within normal limits.  There is no further mention of a knee disorder in the service treatment records.  

On his October 1980 Report of Medical Examination at discharge, the Veteran had normal clinical evaluations of the musculoskeletal system and lower extremities.  These records, overall, tend to show that the knee complaints noted in service were not chronic.  

As the current foot and knee disorders are not one of the chronic diseases listed in 38 C.F.R. § 3.309(a), 38 C.F.R. § 3.303(b) is not for application. Nonetheless, as foot and knee disorders are currently shown and the evidence reflects in-service complaints, the next question is whether there is a casual relationship between the current complaints and the in-service injury.  

Post-service, the Veteran complained of bilateral foot pain in a June 2004 VA treatment note and toe pain during a March 2009 VA spine examination.  There were no other post-service treatment records indicating complaints of, treatment for, or diagnoses of, a bilateral foot or knee disorder.  However, he asserts that he has had bilateral foot and knee pain in service and since service separation.  While he is competent to state that he had pain symptoms at any time, the Board finds that his contention of pain symptoms since service separation are outweighed by the other, contemporaneous, lay and medical evidence of record.  See Charles v. Principi, 16 Vet. App. 370 (2002).

Specifically, the absence of post-service complaints, findings, diagnosis, or treatment of foot or knee disorder for more than two decades after service (until 2004 when he submitted the claims) is one factor, considered in addition to the other factors stated in this decision, which tends to weigh against a finding that the Veteran had knee and foot pain symptoms since service separation.  See Buchanan, 451 F.3d at 1337 (holding that the Board may weigh the absence of contemporaneous medical evidence as one factor in determining credibility of lay evidence, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is one factor that tends to weigh against a claim for service connection).

Also in this regard, the Veteran's extensive VA treatment records prior to June 2004 (when he submitted his claims) do not indicate any complaints of knee or foot symptoms.  Indeed, these records included treatment for various disorders, to include a back disability; however, no complaints were made pertaining to the knee or foot.  

Where, as here, the Veteran sought treatment regarding other ailments, including orthopedic complaints, for which he was experiencing symptoms, it is reasonable to expect that he would seek treatment for all disorders by which he is affected.  For treatment purposes, he would be expected to give a full and accurate history, including all complaints of pain, to ensure adequate medical care.  Thus, his inaction in seeking treatment for a knee or foot disorder prior to submitting claims for service connection (which encompassed a 24-year time period), when viewed in the context of his action regarding treatment for other disorders, may be reasonably interpreted as indicative of an absence of knee and foot pain during that time period.

Next, pursuant to the November 2011 memorandum decision, the Board remanded the bilateral foot and bilateral knee disorder in a July 2012 decision to afford the Veteran VA examinations of his feet and knees.  In July 2012, he underwent a VA examination of his feet and knees.  The VA examiner indicated his review of the service treatment records, private records, and VA treatment records.  During the examination, the Veteran reported that he injured his knees in service but did not recall a foot injury.  He also reported that he had pain in his feet and knees with prolonged walking and standing.

Upon a comprehensive physical examination of his knees and feet, the Veteran was diagnosed with bilateral patellofemoral syndrome, metatarsalgia, and plantar fasciitis.  With respect to the etiology of these disorders, the examiner opined that the bilateral knee and foot disorders were less likely as not caused by or a result of service.  The examiner explained that the Veteran had bilateral patellofemoral syndrome and bilateral metatarsalgia/plantar fasciitis, which were both very common conditions found in the general population.  As such, the examiner concluded that the knee and foot disorders were likely related to normal wear and tear and not associated with service.

The Board finds that the VA examination was adequate as it pertained to the bilateral foot and knee claims.  The examiner took the Veteran's reports of pain and in-service injury into consideration prior to rendering a medical opinion.  Indeed, the examiner recorded the reported history with sufficient detail, which included the Veteran's complaints of bilateral foot and knee pain with prolonged walking and standing, and his assertion that his current disorders were related to service.  

Even with consideration of the Veteran's reports, the examiner found no relationship between active service and the current disorders.  Indeed, the examiner explicitly indicated his review of the records, including the service treatment records that noted in-service foot and knee complaints and disorders.

Here, the Board finds that the weight of the evidence demonstrates that the Veteran's currently-diagnosed bilateral knee and foot disorder are not related to his active service.  Specifically, the July 2012 VA examiner reviewed the claims file, including service treatment records, and conducted an interview and physical examination of the Veteran.  The examiner ultimately concluded that there was no relationship between the Veteran's service and the current knee and foot disorders.  The examiner's opinion is thus based on the accurate facts shown in the service treatment records and the opinion is competent and probative.

The Board now turns to the Veteran's assertions regarding the relationship between his service and his current bilateral knee and foot disorders.  Here, while he is competent to provide evidence regarding matters that can be perceived by the senses, he is not shown to be competent to render medical opinions.  See Jandreau, 492 F.3d at 1372; see also Barr 21 Vet. App. at 303 (lay testimony is competent to establish the presence of observable symptomatology).  

As such, as a lay person, he is without the appropriate medical training and expertise to offer an opinion on a medical matter, including the etiology of a specific disorder.  Furthermore, the question of causation, in this case, involves a complex medical issue that the Veteran is not competent to address.  Jandreau 492 F.3d at 1372.  As such, his lay opinion does not constitute competent medical evidence and lacks probative value.  38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a).

Based on the above, the Board finds that the weight of the competent evidence demonstrates no relationship between the Veteran's current bilateral knee and foot disorders and service.  On the question of relationship of current bilateral knee and foot disorders to service, the only probative nexus opinion of record, in July 2012, weighs against the claim.  

The July 2012 VA opinion is competent and probative medical evidence as it is factually accurate, and is supported by an adequate rationale.  The examiner was informed of the pertinent evidence, reviewed the claims file, including the Veteran's own reported histories and complaints, and fully articulated the opinion; therefore, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against a finding of a relationship between a bilateral knee and foot disorder and service.

For these reasons, the Board finds that a preponderance of the evidence is against the claims and the appeal is denied.  As the preponderance of the evidence is against the claims, the benefit-of-the-doubt doctrine is not for application.

Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  Quartuccio v. Principi, 16 Vet. App. 183 (2002).  This notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

When VCAA notice is delinquent or erroneous, the "rule of prejudicial error" applies.  See 38 U.S.C.A. § 7261(b)(2) (West 2002).  In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.  

Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in July 2004 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter.  The letter informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence.  Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content.

With respect to the Dingess requirements, in February 2008, the RO provided the Veteran with notice of what type of information and evidence was needed to establish disability ratings, as well as notice of the type of evidence necessary to establish an effective date.  With that letter, the RO effectively satisfied the remaining notice requirements with respect to all issues on appeal.  

Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b).  

Next, VA has a duty to assist a veteran in the development of the claim.  This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary.  See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). 

In determining whether a medical examination be provided or medical opinion obtained, there are four factors to consider: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing an in-service event, injury, or disease, or manifestations during the presumptive period; (3) an indication that the disability or symptoms may be associated with service; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim.  

With respect to the third factor, the types of evidence that "indicate" that a current disorder "may be associated" with service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).  

After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  First, the information and evidence that has been associated with the claims file includes the service treatment records, post-service VA treatment records (to include treatment records obtained pursuant to the July 2012 Board Remand), a VA examination of the feet and knees from July 2012, and the Veteran's statements.  

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 VA opinions and findings obtained in this case are adequate as they pertain to the claims for service connection for a bilateral foot disorder and a bilateral knee disorder.  The VA opinion provided in July 2012 considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale for the opinion stated.  

Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion as to the issues of a bilateral foot and bilateral knee disorder has been met.  38 C.F.R. § 3.159(c)(4); see also Stegall, 11 Vet. App. at 268.

As such, the RO has provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case.  The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal.  Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006).  Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claims.



ORDER

Service connection for a bilateral foot disorder is denied.

Service connection for a bilateral knee disorder is denied.


REMAND

With respect to the remaining claims, another remand is needed to ensure that there is a complete record upon which to decide the Veteran's claims.  

With respect to the claim for a psychiatric disorder, the Veteran was afforded a VA psychiatric examination; however, the VA opinion was inadequate for rating purposes because it is unclear whether the VA examiner intended to include both a substance-induced mood disorder and dysthymia as the diagnoses or intended to indicate that the Veteran had one or the other.  

Moreover, the examiner did not provide an opinion with respect to the etiology of substance-induced mood disorder and/or dysthymia.  Instead, the examiner noted that the Veteran had some chronic depressive symptoms that were documented in his medical records since 1998.  However, the examiner opined that there was no evidence from military records or VA medical records that his depressive symptoms were related to service or were originally diagnosed in service.  

While the Veteran was previously diagnosed with depression, the examiner failed to opine on the relationship between his substance-induced mood disorder and dysthymia.  Further, the proffered, incomplete, medical opinion was not accompanied by any explanation or medical basis.  Inadequate medical examinations include those that provide conclusions unsupported by a rationale.  

Therefore, the case must again be remanded for compliance with the July 2012 Board Remand regarding the acquired psychiatric disorder claim, and an adequate medical opinion accompanied by a complete rationale must be obtained as to the etiology of all the Veteran's diagnosed, acquired, psychiatric disorders.

In addition, the Veteran has also contended that his psychiatric disorder developed secondary to his service-connected back disability.  VA must consider such a theory of entitlement if it is raised by the record.  See Schroeder v. West, 212 F. 3d 1265, 1271 (Fed. Cir. 2000) (holding that VA has an obligation to explore all legal theories, including those unknown to the veteran, by which he can obtain a benefit sought for the same disability); see also Floyd v. Brown, 9 Vet. App. 88 (1996) (VA must consider all possible theories of entitlement raised by the evidentiary record).  This issue must also be addressed by the examiner upon remand.

With respect to the claim for a gastrointestinal disorder, pursuant to the July 2012 Board Remand, the Veteran was to be scheduled for a gastrointestinal examination.  However, the record does not reflect that he underwent any such examination.  There is no indication that he was notified that he was scheduled for such an examination or that he otherwise failed to report for the examination.  

Therefore, the claim is again remanded for compliance with the July 2012 Board Remand regarding the gastrointestinal disorder, and an adequate medical opinion accompanied by a complete rationale must be obtained as to the etiology of all the Veteran's diagnosed, gastrointestinal disorders.

Accordingly, the issues of service connection for an acquired psychiatric disorder and a gastrointestinal disorder are REMANDED for the following actions:

1.  Obtain VA clinical records from the VAMC Memphis for the period since June 2012.

Any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review.

2.  If possible, request that the medical professional who conducted the July 2012 VA psychiatric examination review the claims file and provide an addendum medical opinion.  The claims file, including a copy of this Remand, should be made available to, and be reviewed by, the examiner.  The examiner should note such review in the examination report (another examination of the Veteran is not required).

If the July 2012 examiner is not available, obtain the requested opinion from another appropriate medical professional.  If the examiner determines that an additional examination of the Veteran is necessary to provide a reliable opinion as to diagnosis and causation, such examination should be scheduled.  However, the Veteran should not be required to report for another examination as a matter of course, if it is not found to be necessary.  The claims folder should be made available to and reviewed by the examiner.

The examiner should offer the following opinions:

a) Is it at least as likely as not (50 percent probability or greater) that any current acquired psychiatric disorder, to include depression, substance-induced mood disorder, and dysthymia, began during service or is otherwise etiologically linked to active duty?

b) Is it at least as likely as not (50 percent probability or greater) that any current acquired psychiatric disorder, to include depression, substance-induced mood disorder, and dysthymia, was aggravated (permanently worsened in severity) by his active service or by a current low back disability?

The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it.

A rationale should be given for all opinions and conclusions rendered.  The opinions should address the particulars of this Veteran's medical history and the relevant medical science as applicable to this claim.  If an opinion cannot be rendered without resorting to speculation, the examiner should state whether the inability to provide an opinion was due to a need for further information (with said needed information identified) or because the limits of medical knowledge had been exhausted regarding the etiology of the disorder.

3.  Schedule the Veteran for an appropriate examination to assist in determining the current nature and likely etiology of any diagnosed gastrointestinal disorder, to include gastroesophageal reflux disease.  

The relevant documents in the claims file should be made available to the examiner for review in connection with the examination.  The examiner should conduct a thorough examination, including any indicated tests and studies, and provide a diagnosis for any pathology found.  The examiner should also request a history from the Veteran.  A notation to the effect that the record review and history took place should be included in the examiner's report.

The examiner should offer the following opinion:

Is it at least as likely as not (50 percent probability or greater) that any current gastrointestinal disorder, to include gastroesophageal reflux disease, began during service or is otherwise etiologically linked to active duty?

The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it.

A rationale should be given for all opinions and conclusions rendered.  The opinions should address the particulars of this Veteran's medical history and the relevant medical science as applicable to this claim.  

If an opinion cannot be rendered without resorting to speculation, the examiner should state whether the inability to provide an opinion was due to a need for further information (with said needed information identified) or because the limits of medical knowledge had been exhausted regarding the etiology of the disorder.

4.  Thereafter, review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full.  In this regard, ensure that the detailed questions asked by the Board have been addressed by the examiners.

If any development is incomplete, appropriate corrective action is to be implemented.  Specific attention is directed to the medical opinions.  If the opinions do not include adequate responses to the specific opinions requested, they must be returned for corrective action.  

5.  When the development requested has been completed and compliance with the requested actions has been ensured, the issues of service connection for an acquired psychiatric disorder and a gastrointestinal disorder should again be reviewed on the basis of the additional evidence.

If the benefits sought are not granted, furnish a supplemental statement of the case to the Veteran and his representative, if any, and afford him a reasonable opportunity to respond before the record is returned to the Board for further review.

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).



______________________________________________
L. HOWELL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs