Citation Nr: 1314643 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 10-43 925 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for Crohn's disease, to include as secondary to service-connected irritable bowel syndrome (IBS). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty from August 1944 to November 1946, from February 1951 to February 1957, and from April 1968 to July 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied service connection for Crohn's disease. A video-conference hearing was held in March 2013 with the Veteran in Muskogee, Oklahoma, before the undersigned Veterans Law Judge, sitting in Washington, D.C., who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the determination in this case. A transcript of the hearing testimony is in the claims file. A portion of the Veteran's records are contained in the Virtual VA system. Instead of paper, a highly secured electronic repository is used to store and review every document involved in the claims process. The use of this system allows VA to leverage information technology in order to more quickly and accurately decide a Veteran's claim for benefits. Because the current appeal was processed as part of the Virtual VA system, any future consideration of this appellant's case should take into consideration the existence of this electronic record. The issue of entitlement to an increased rating for IBS has been raised by the record, specifically in an October 2009 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant if further action is required. REMAND The Veteran is currently service-connected for IBS. He contends that he has Crohn's disease which should also be service-connected, on either a direct basis or as secondary to IBS. He has also suggested that his current service-connected condition is actually Crohn's disease, but was misdiagnosed as IBS. In order to establish service connection for a claimed disability, the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). In addition to the applicable legal criteria cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2012). Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. Service treatment records dated June 1969 reflect complaints of right upper quadrant pain related to the ingestion of certain foods. The Veteran was diagnosed with irritable colon. Gallbladder colic was doubted as a diagnosis. An October 2006 VA QTC examination noted a diagnosis of IBS in service, though no specific current diagnosis was rendered. Service connection for IBS was granted in a January 2007 rating decision. VA treatment records dated January 2009 stated that the Veteran's history was not typical for IBS, and did not suggest ulcerative colitis or Crohn's colitis. The treating physician opined that the Veteran may have terminal ileum Crohn's disease. A June 2009 small bowel study revealed findings suspicious for an inflammatory bowel disease such as Crohn's. An August 2009 VA examination reflects a diagnosis of Crohn's disease. The examiner stated that Crohn's disease was an idiopathic inflammatory disease. IBS is associated with abdominal pain and does not progress to cancer or inflammatory disease. The Veteran had a family history of Crohn's disease, and family history was a strong risk factor for the condition. The examiner concluded that the Veteran's family history was the most likely etiology of his condition. The U.S. Court of Appeals for the Federal Circuit has held that 38 C.F.R. § 4.14 clearly contemplates that several separately diagnosed disorders may have a single manifestation, and prohibits the VA from rating that manifestation for each disorder. However, evidence could be received that reflected that two conditions resulted in different manifestations, thus allowing the two conditions to be separately rated. Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009). Additional development is necessary in order to fully and fairly adjudicate the Veteran's claim. Specifically, while the Veteran is currently service-connected for IBS, his recent treatment records suggest that he has Crohn's disease instead of, or in addition to, his IBS. A clarifying opinion must be obtained to address service connection for Crohn's disease as a possible change in diagnosis of a service-connected disorder. If the examiner determines that the Veteran has two separate conditions of IBS and Crohn's disease, he should address whether Crohn's disease is aggravated by IBS. As the claim is being remanded, the Veteran's most recent VA treatment records should be obtained as well. The Veteran also referenced receiving treatment from an HMO, Dr. Ford, and Dr. Mole at his hearing. These records should be obtained on remand. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Ask the Veteran to identify all private medical care providers that treated him for any gastrointestinal problems since his separation from service, to include an HMO, Dr. Ford, Dr. Mole, and CCOM Medical Group. Make arrangements to obtain all records that he adequately identifies. 2. Obtain the Veteran's VA treatment records for the period from July 6, 2012 through the present and associate them with the claims file. 3. Thereafter, provide the claims file to the August 2009 VA examiner. Instruct the examiner review the entire claims file, with particular attention to the June 1969 service treatment records diagnosing irritable colon, January 2009 and June 2009 VA treatment records, and the Veteran's submission regarding IBS and Crohn's disease from Wrongdiagnosis.com. Instruct the examiner to clearly address the following: A) Whether the Veteran has separate diagnoses of Crohn's disease and IBS, or whether he has only one of these two disabilities. B) If the Veteran only has Crohn's disease, provide an opinion as to whether the earlier diagnosis of irritable bowel syndrome was a misdiagnosis of Crohn's disease, and/or whether the symptoms of Crohn's disease first manifested in service in June 1969. Is it at least as likely as not (i.e., 50% or greater probability) that Crohn's disease had its clinical onset during active service or is related to any in-service disease, event, or injury? C) If the Veteran has both Crohn's disease and IBS, provide an opinion as to whether it is at least as likely as not (i.e., 50% or greater probability) that Crohn's disease is aggravated by IBS. The term "aggravation" in this context refers to a permanent worsening of Crohn's disease, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. The examiner must provide a complete rationale for all opinions. If he is unable to provide an opinion without resorting to speculation, he must state why this is the case. If the August 2009 VA examiner is unavailable, then the claims file must be forwarded to another appropriate examiner, who must comply with the above instructions. A new VA examination must be scheduled if it is found to be necessary to address the above questions. 4. Following completion of the foregoing, review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. In particular, determine whether the examiner has responded to all questions posed. If not, the report must be returned for corrective action. 38 C.F.R. § 4.2 (2012). 5. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, readjudicate the claim. If the claim remains denied, provide the Veteran with a supplemental statement of the case. After the Veteran has had an adequate opportunity to respond, return the appeal to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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). _________________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).