Citation Nr: 1321348 Decision Date: 07/03/13 Archive Date: 07/12/13 DOCKET NO. 09-42 702 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a stomach and intestine disability. 2. Entitlement to service connection for knee and leg disability. 3. Entitlement to an increased rating greater than 30 percent for chronic recurrent low back syndrome. 4. Entitlement to an increased rating greater than 10 percent for right S1 radiculopathy. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran had active service from March 1970 to March 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board has not only reviewed the Veteran's physical claims file, but also his Virtual VA electronic claims file to ensure a total review of the evidence. The issue of entitlement to a compensable rating for perforation, left tympanic membrane, has been raised by the record, 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, DC. VA will notify the appellant if further action is required. REMAND The Veteran claims entitlement to service connection for stomach and intestine problems, as well as knee and ankle problems. The Veteran also contends that his current ratings for his service-connected low back and right lower extremity radiculopathy disabilities do not accurately reflect the severity of his current condition. After a complete review of the evidence of record, the Board concludes that a remand is required for additional development of each of these issues. Stomach and Intestine VA has a duty to provide a VA examination when the record lacks evidence to decide the Veteran's claim and there is evidence of: (1) a current disability; (2) an in-service event, injury, or disease; and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. 38 C.F.R. § 3.159(c)(4) (2012); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, there are multiple treatment records noting a history of gastroesophageal reflux disease (GERD) that included medication management. The Veteran's service treatment records include multiple complaints of abdominal cramping and diarrhea. Finally, an October 2009 letter from the Veteran's private primary treatment provider indicates that current stomach and intestine problems were caused by an intestinal parasite contracted from untreated drinking water in Naples, Italy that went untreated in service and resulted in permanent damage to the stomach and/or intestinal tract. Although this opinion supports the claim, it is unclear to the Board what the exact nature of the Veteran's current diagnosis referable to the stomach is. Therefore, in light of the foregoing and the absence of any prior VA examination on this issue, the Board concludes that a VA examination is required to determine whether any current stomach and/or intestinal disability exists, and further whether it was incurred in or is otherwise related to the Veteran's military service, to include from an intestinal parasite contracted from tainted drinking water in Naples, Italy. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (if the medical evidence of record is insufficient, the Board is free to supplement the record by seeking an advisory opinion or ordering a medical examination). Knee and Ankle The Court of Appeals for Veterans Claims (Court) has held that "when VA concludes that a private medical examination report is unclear or insufficient in some way, and it reasonably appears that a request for clarification, both as limited elsewhere in this opinion, could provide relevant information that is otherwise not in the record and cannot be obtained in some other way, the Board must either seek clarification from the private examiner or the claimant or clearly and adequately explain why such clarification is unreasonable." See Savage v. Shinseki, 24 Vet. App. 259 (2011). In this case, the Veteran submitted an October 2009 letter from Dr. J.E.A. that noted ongoing treatment of the Veteran since 1978. The letter stated, "It is my opinion that [the Veteran's] left hip and leg problems (knees and ankles) outlined in his application have developed over this period as a direct result of his original back injury and that these are interrelated. I support [the Veteran's] claim and application for service connection of this ailment." In that regard, the Board notes that the Veteran has a diagnosis of right S1 radiculopathy, for which he is service-connected. There is no diagnosis of record of a right or left knee, ankle, or hip disability. It is unclear, therefore, whether Dr. J.E.A.'s statement is an attempt to link the Veteran's service-connected radiculopathy to his service-connected low back disability or if the statement relates to some other lower extremity disability or disabilities involving the left hip, knees, and/or ankles, a diagnosis of which is not currently of record. Given the Court's holding in Savage, the Board finds that a remand is necessary to attempt to obtain clarification from Dr. J.E.A. as to the specific disability or disabilities of the right and/or left lower extremity that he attributes to the Veteran's service-connected low back disability. Thus, the RO/AMC should attempt to obtain from Dr. J.E.A. all current right or left lower extremity injuries or disabilities attributed, at least to some degree, to the Veteran's service-connected low back disability, as referenced in Dr. J.E.A.'s October 2009 letter. In the alternative, the Veteran may directly provide VA with such clarification from Dr. J.E.A.. Based on any response received from Dr. J.E.A. the RO/AMC is encouraged to undertake any additional development deemed necessary, to include obtaining a VA examination to consider the etiology of any newly received diagnoses of knee, ankle, or hip disabilities. Chronic Recurrent Low Back Syndrome and Right S1 Radiculopathy The Veteran was last afforded a VA examination for his service-connected low back disability and radiculopathy residuals in September 2009. The Board finds that the resulting examination report is inadequate for rating purposes. Specifically, the September 2009 VA examination report documented the Veteran's range of forward flexion, extension, and right and left lateral rotation and flexion. That said, the examiner failed to indicate if and at what point pain was elicited in all planes of motion. The examiner did note that there was no severe pain on extension and no "remarkable" pain on left or right lateral rotation; however, the examiner failed to note whether there was pain on forward or lateral flexion and, if so, at what point in the range of motion this occurred. The absence of notation of pain in these planes of motion is potentially significant given that pain was noted much earlier than the reported 60 degrees of forward flexion and 20 degrees of bilateral lateral flexion during a prior August 2006 VA examination report. In addition, the September 2009 VA examination report noted that repetitive motion caused moderate weakness and lack of endurance of the lumbosacral spine, but failed to indicate to what extent these difficulties would affect range of motion or general functionality. As such, given the Veteran's contentions, the passage of time since the last VA examination, and the inadequacies of the September 2009 VA examination report, the Board concludes that another VA examination of the Veteran's service-connected low back is required, to include his right lower extremity radiculopathy. Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain clarification from Dr. J.E.A. as to the disability or disabilities of the left hip, knees, and/or ankles found to be associated with the Veteran's service-connected low back disability. Specifically, attempt to obtain from Dr. J.E.A. all current right or left lower extremity injuries or disabilities attributed, at least to some degree, to the Veteran's service-connected low back disability, as detailed in Dr. J.E.A.'s October 2009 letter. Also request further rationale as to why such injuries or disabilities were caused or aggravated by the service-connected low back disability. If current authorization for such a request is needed, this should be requested from the Veteran. In the alternative, the Veteran may directly provide VA with such clarification from Dr. J.E.A.. 2. Based on any response received from Dr. J.E.A., determine whether to undertake any additional development, to include obtaining a VA examination to consider the etiology of any newly received diagnoses of knee, ankle, or hip disabilities. 3. Schedule the Veteran for an appropriate VA examination for his claimed stomach and intestine disability. The claims file should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed. After reviewing the file, conducting all appropriate diagnostic and physical testing, and obtaining a complete history from the Veteran, the examiner should document any current stomach or intestinal disability and render an opinion as to whether it is at least as likely as not that any currently existing stomach or intestinal disability was incurred in or is otherwise related to the Veteran's military service, to include as a result of an intestinal parasite contracted from untreated drinking water in Naples, Italy. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means 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 that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinion provided. 4. Schedule the Veteran for an appropriate VA examination, to include a complete physical examination, in order to determine the current severity of his service-connected low back and right lower extremity radiculopathy disabilities. All tests deemed necessary should be conducted, and all clinical findings should be reported in detail. The complete claims file must be provided to the examiner for review in conjunction with the examination and the examiner should note that it has been reviewed. The examiner should discuss all symptoms and findings necessary to adequately rate the Veteran under the appropriate diagnostic code(s). 5. After the above is complete, readjudicate the Veteran's claims. If a complete grant of all benefits requested is not granted, issue a supplemental statement of the case (SSOC) to the Veteran and his representative, and they should be given an opportunity to respond, before the case is returned to the Board. The appellant 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). _________________________________________________ BETHANY L. BUCK 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).