Citation Nr: 1318454 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 06-19 817 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a digestive system disability, claimed as secondary to service-connected anxiety disorder. 2. Entitlement to service connection for hypertension, to include as secondary to service-connected anxiety disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The Veteran served on active duty from November 1969 to July 1972. He received the Army Commendation Medal. These matters come before the Board of Veterans' Appeals (Board) from an October 2005 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In that decision, the RO denied entitlement to service connection for hypertension and irritable bowel syndrome, to include as secondary to service connected anxiety disorder. In a June 1974 rating decision, the RO denied entitlement to service connection for hypertension. The record includes a document dated in July 1974 and styled a "Control Document and Award Letter." This suggests that the Veteran was advised that the June 1974 decision had granted service connection for anxiety disorder with an initial rating of 10 percent; but does not indicate that he was advised of the denial of service connection for hypertension or of his right to appeal that decision. Cf. 38 C.F.R. § 3.103(e) (1974). There is no other evidence that the Veteran received the requisite notice regarding the hypertension decision. He did express disagreement with the initial rating for his psychiatric disability, but did not otherwise evidence any knowledge of the decision regarding hypertension. Hence, that decision remains pending. Woods v. Gober, 14 Vet. App. 214, 221 (2000). In his June 2006 substantive appeal (VA Form 9), the Veteran requested a Board hearing at the RO (Travel Board hearing). In response to a July 2006 letter from the RO, the Veteran indicated that instead of a Travel Board hearing he wished to have a hearing before a Decision Review Officer at the RO. In September 2006, the Veteran's representative withdrew the hearing request. In January 2010, these matters were remanded for further development, to include adequate notification for the hypertension issue; and a VA examination and nexus opinion for the digestive system disability issue. In the January 2010 remand, the Board referred the issue of a total rating for compensation based on individual unemployability (TDIU) for initial adjudication. It does not appear this issue has been addressed. Consequently, this issue is again referred to the RO for adjudication. The issue of entitlement to service connection for hypertension 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 1. The Veteran's current digestive system disability, namely irritable bowel syndrome (IBS), and gastritis, has been aggravated by his service-connected psychiatric disability. CONCLUSION OF LAW The criteria for entitlement to service connection for a digestive system disability, namely IBS, and gastritis, have been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.310 (2006 & 2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). The VCAA is not applicable where further assistance would not aid a veteran in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision, further assistance is unnecessary to aid the Veteran in substantiating this claim. Service Connection Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element for listed chronic diseases, such as hypertension, is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Grober, 10 Vet. App. 488, 495-97 (1997); cf. Walker v. Shinseki, 708 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 disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Federal Circuit has held that "[l]ay 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 profession." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence." Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). 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. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. §§ 3.303(d), 3.307, 3.309. Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of a service-connected condition. See 38 C.F.R. § 3.310. Service connection is possible when a service-connected condition has aggravated a claimed condition, but compensation is only payable for the degree of additional disability attributable to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). VA has amended 38 C.F.R. § 3.310 to incorporate the Court's decision in Allen except that VA will not concede aggravation unless there is medical evidence showing the baseline level of the disability before its aggravation by the service connected disability. 38 C.F.R. § 3.310(b). In this case, the Veteran applied for service connection prior to the effective date of the amendment (which was in October 2006). A new law or regulation applies, if at all, only to the period beginning with the effective date of the new law or regulation. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). In VAOPGCPREC 7-2003, VA's General Counsel held that when a new statute is enacted or a new regulation is issued VA must determine whether applying the new provision to claims that were pending when it took effect would produce genuinely "retroactive effects." If applying the new provision would produce such "retroactive effects," VA ordinarily should not apply the new provision to the claim. If applying the new provision would not produce "retroactive effects," VA ordinarily must apply the new provision. A new law or regulation has prohibited "retroactive effects" if it is less favorable to a claimant than the old law or regulation; while a liberalizing law or regulation does not have "retroactive effects." VAOPGCPREC 7-2003; 69 Fed. Reg. 25179 (2004). The Federal Circuit has created a three-part test to determine whether a new law has prohibited retroactive effects: (1) "the nature and extent of the change of the law;" (2) "the degree of connection between the operation of the new rule and a relevant past event;" and (3) "familiar considerations of fair notice, reasonable reliance, and settled expectations." Princess Cruises v. United States, 397 F.3d 1358 (Fed. Cir. 2005). If, under this test, a rule or regulation appears to have a retroactive effect, then the rule or regulation cannot be applied to cases pending at the time of its promulgation. Rodriguez v. Peake, 511 F.3d 1147 (Fed. Cir. 2008). The Board is applying the old version of 38 C.F.R. § 3.310 because the revised regulation could have prohibited retroactive effects. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). The Veteran's primary theory of entitlement is that he has a digestive system disability, namely IBS, as a result of his service-connected anxiety. In this case, VA treatment records dated from May 1980 to September 2005 show intermittent treatment for GI disorders, to include IBS. A June 2005 letter from a physician at the Gastroenterology Institute states that the Veteran had been treated since 1994 for irritable colon. Accordingly, a current disability is demonstrated. See Romanowski v. Shinseki, No. 11-3272 (Vet. App. May 9, 2013) (holding the current disability requirement may be satisfied by evidence of the disability shortly before the claim is filed). The Veteran is service-connected for anxiety. He underwent a VA examination in conjunction with his claim in April 2010 (with addendums in June 2011 and November 2011). The examiner, who reviewed the file in its entirety, and examined/interviewed the Veteran, found that the service-connected anxiety at least as likely as not aggravated the Veteran's IBS and gastritis. In so concluding, the examiner explained that there were numerous studies in the medical literature on the relationship between gastrointestinal distress and anxiety. In the addendums, the examiner indicated that she was unable to quantify the baseline level of gastrointestinal disability prior to aggravation without resort to mere speculation. However, as noted, the instant claim was filed prior to October 2006 and thus there is no need to determine a baseline prior to granting service connection. In conclusion, all criteria pertinent to a secondary service connection claim have been met. The benefit sought on appeal is accordingly allowed. ORDER Entitlement to service connection for a digestive system disability is granted. REMAND At a VA examination in April 1974, the examiner made reference to blood pressure readings during VA hospitalization in September 1972. The record contains notice that the Veteran underwent VA hospitalization in September 1972 for a left palatal cyst. Records of the hospitalization have not been obtained. VA has an obligation to obtain these records. 38 U.S.C.A. § 5103A(c) (West 2002 & Supp. 2012). VA has a duty to provide an examination or obtain a medical opinion when there is competent evidence of a current diagnosis or signs and symptoms of a current disability, the evidence indicates that the current disability may be related to service, and the evidence is insufficient to decide the claim. 38 U.S.C.A. § 5103A(d). The April 1974 examination report includes a diagnosis of hypertension. Three diastolic readings on that examination were in excess of 110. The examiner reported that blood pressure readings in September 1972, were 130/90. The examination for separation from service shows that the Veteran's blood pressure was 130/80. This record shows current hypertension that may be related to service. It is unclear this is, in fact the case. Hence an examination is needed. Accordingly, the case is REMANDED for the following: 1. The agency of original jurisdiction should obtain records of the Veteran's VA hospitalization and any outpatient treatment in September 1972. Efforts to obtain these records must continue until they are obtained, unless it is reasonably certain that the records do not exist, or that further efforts would be futile. If any requested records cannot be obtained the Veteran should be advised of the missing records, of the efforts made to obtain the records, and of any further actions that will be taken with regard to his claim. 2. The Veteran should be afforded a VA examination to determine whether current hypertension (hypertension shown at any time since the time of his March 1974 claim) had its onset in service or is otherwise the result of a disease or injury in service. The examiner should review the claims folder and note such review in the examination report, or in an addendum. The examiner should answer the following questions: Did the current hypertension begin during the Veteran's active service? In this regard the examiner should consider whether the blood pressure reading at the time of service discharge was indicative of hypertension, and should also consider the elevated readings in September 1972 and the diagnosis of hypertension provided on VA examination in April 1974. Did anxiety reaction cause or aggravate the Veteran's hypertension? The examiner should provide reasons for these opinions. If an opinion cannot be provided without resort to speculation, the examiner should provide reasons why this is so; and state whether the inability to provide the needed opinion is due to the limits of medical knowledge of missing evidence. 3. If the claim remains denied, the AOJ should issue a supplemental statement of the case, before returning the case to the Board, if otherwise in order. 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). ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs