Citation Nr: 1324542 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 08-37 504 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for hypertension as secondary to a service-connected organic mood disorder. 2. Entitlement to service connection for irritable bowel syndrome (IBS) as secondary to a service-connected organic mood disorder. 3. Entitlement to service connection for a bladder disability as secondary to a service-connected organic mood disorder. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION The Veteran served on active duty from February 1976 to December 1977. She also had tours of active duty for training (ACDUTRA) while a member of the Army Reserve. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which, in pertinent part, denied the benefits sought on appeal. The RO in St. Petersburg, Florida, exercises current jurisdiction of the claims file. The Board notes a VA Form 21-22 the Veteran signed in March 2013 that appointed the Paralyzed Veterans of America (PVA) as her representative for this appeal. In a June 2013 letter, however, PVA informed the Board the Veteran did not coordinate the action with that organization. As a result, PVA did not accept the appointment. PVA made a limited appearance solely to inform the Board of that fact. See 38 C.F.R. § 20.608(b) (2012). The PVA letter notes the Veteran was provided a copy. The Board has not received any subsequent correspondence from the Veteran on this matter. Hence, she is deemed to represent herself on this appeal. In March 2010, the Veteran and her son testified at a Board hearing via video conference before a Veterans Law Judge (VLJ) who has since retired from the Board. An April 2012 Board letter informed her she had the opportunity to have another hearing before the VLJ who would decide her claim. The Veteran indicated in a May 2012 statement that she wished to present testimony at another hearing, and she was provided with a hearing before the undersigned VLJ in July 2012. Transcripts of these hearings are of record and have been reviewed. In connection with each hearing, the Veteran submitted additional evidence, along with a signed waiver of RO consideration of the evidence. The Board accepts this evidence for inclusion in the record. See 38 C.F.R. § 20.1304 (2012). In October 2012, the Board remanded the case to the Appeals Management Center (AMC), in Washington, DC, for additional development. The Veteran has a Virtual claims file, which is a highly secured paperless repository, associated with his appeal. The Board has reviewed the documents in the claims file and finds that all documents in the Virtual file which are not in the paper claims file have been reviewed and considered by the AMC, as noted in the March 2013 Supplemental Statement of the Case (SSOC). Hence, there is no necessity to seek a waiver from the Veteran or to remand the case for initial RO review and consideration. See 38 C.F.R. § 20.1304 (2012). In July 2013, the Board received additional evidence from the Veteran for which she did not waive initial RO review and consideration. Nonetheless, since the evidence relates to the issue the Board remands, it will be considered at that time. See id. The issue of entitlement to service connection for hypertension as secondary to service-connected organic mood disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the AMC. VA will notify the Veteran if further action is required on her part. FINDINGS OF FACT 1. The AMC completed the additional development directed in the October 2012 remand by seeking additional treatment records and arranging appropriate VA examinations of the Veteran. 2. The evidence related to whether there is a nexus between the Veteran's diagnosed IBS and bladder dysfunction, to include urine incontinence, and her service-connected organic mood disorder, is in equipoise. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, her IBS and bladder dysfunction are proximately due to her service-connected organic Mood disorder. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the 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 and 3.326(a). In as much as the Board decides in the Veteran's favor in the decision below, discussion of VA's compliance with the VCAA notice and assistance requirements would serve no useful purpose. Overview While the Veteran's claims have been adjudicated on a direct and secondary basis, see 38 C.F.R. §§ 3.303 and 3.310, the Board notes the Veteran has consistently asserted that her IBS and irritable bladder syndrome are due to her service-connected organic mood disorder. The Board notes further that she has not asserted those disorders had a clinical onset in active service or due to active service. Hence, the discussion below is confined to secondary considerations. Applicable Legal Requirements A disability which is proximately due to or the result of a service-connected injury or disease shall be service connected. 38 C.F.R. § 3.310. Further, a disability which is aggravated by a service-connected disorder may be service connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Analysis Service connection is in effect for organic mood disorder via an August 1991 rating decision secondary to a 1986 motor vehicle accident (MVA). The evidence of record show the Veteran has current diagnoses of IBS and irritable bladder. Hence, the sole issue for resolution is Wallin element 3: whether there is a causal nexus between the disorders and the Veteran's service-connected disability. 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-where applicable, provide the reasons for its rejection of any material evidence favorable to the Veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). In applying this reasons or bases requirement to the Board's analysis of medical evidence, the Board's findings of fact must be supported by the medical evidence of record, rather than the Board's own judgment. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). In discharging this responsibility, the Board may accept or favor certain medical opinions over others, Schoolman v. West, 12 Vet. App. 307, 310-11 (1999), provided the reasons for doing to are stated. Winsett v. West, 11 Vet. App. 420, 424-25 (1998). Documentation in the claims file notes the Veteran's involvement in a 1977 MVA during her active service and another one during a tour of ACDUTRA in 1986. The August 1991 rating decision noted the residual impact on the Veteran's executive functioning and categorized the disability as dementia secondary to service-connected closed-head injury. A February 1997 rating decision granted service connection for depression associated with the service-connected closed-head injury. The RO assigned a 100 percent evaluation for impairment of intellectual functions, orientation, memory and judgment, and lability and shallowness of affect which produced total social and industrial inadaptability. VA outpatient records dated in August 1999 note the Veteran's complaints of gastrointestinal (GI) times several years. The entry also notes the Veteran was recently diagnosed with IBS. The Veteran's private and VA outpatient records, and her several written assertions, note her complaints of bladder symptoms, to include urine incontinence when coughing. A January 1994 VA entry (Vo. 6) notes bladder irritation. A September 1995 VA entry notes complaints of urine frequency and a history of recurrent urinary tract infections. A June 1996 pre-operative entry notes the Veteran's report of urinary frequency for years. In July 1996, the Veteran underwent an anterior total hysterectomy. The operation report notes dysuria and urinary tract infection resolved. A March 1999 VA entry notes the Veteran's complaints of urine frequency times seven years. A November 1999 entry notes a diagnosis of low compliance bladder and bladder floor scarring due to injury at the time of the hysterectomy. The Veteran has an extensive medical history. Her claims file currently includes 12 volumes. The voluminous documentation reflects that the Veteran has resided in several locations, to include Hawaii and Australia. The Board finds the March 2000 report of SG, M.D., to be one of the more comprehensive reviews of the Veteran's disability, even though it is now 13 years removed from its issue date. Dr. G provided psychiatric treatment to the Veteran during her residence in Hawaii. To place Dr. G's report in context, the Board notes that, although the Veteran was granted service connection on the basis of the 1986 MVA, she also asserted that she in fact sustained a brain injury in the 1977 MVA, which the 1986 MVA aggravated. The central thrust of Dr. G's analysis was his opinion to that effect. Dr. G also addressed other disabilities that he opined were due to the Veteran's head injury. In his formal diagnoses related to the Veteran, Dr. G included IBS and irritable bladder syndrome in Axis III, and he opined were symptoms referable to the 1977 MVA and the Veteran's organic affective syndrome. Dr. G opined the continuous stress endured by the Veteran as she coped to adjust to her significantly reduced executive functioning while not truly realizing what was going on in fact led to residual secondary disability. Dr. G noted that IBS and irritable bladder syndrome are often the result of continuous and severe stress and anxiety, and he noted the Veteran had chronic IBS. Dr. G's report reflects that he had conducted a comprehensive review of the Veteran's medical history and records. A December 2000 report of PJ, Consultant Psychiatrist, reflects she treated the Veteran while she resided in Australia. Dr. J noted she treated the Veteran on a bi-weekly to weekly basis, beginning in July 2000. Like Dr. G, Dr. J demonstrated a comprehensive knowledge of the Veteran and her history. Dr. J noted that the Veteran was an extremely disorganized historian, which was a reflection of her difficulties due to her diminished cognitive functioning. Dr. J noted the Veteran's reports of persistent depression, which included feelings of apathy and despair. Dr, J noted the periods of depression could last for weeks. Sleep disturbance was also noted. Dr. J noted the Veteran's symptoms resulted in poor appetite and a fluctuating level of self-care. As a result, Dr. J noted, the Veteran had required assistance from others with meals and shopping, and the Veteran was then relying on take-away food. Dr. J noted the Veteran had a bowel dysfunction secondary to her poor diet. Dr. J believed the Veteran would benefit from the intervention of a gastroenterologist to assist in the management of IBS, which Dr. J opined was secondary to the stress of brain injury. In a April 2002 letter addressed to a rheumatologist, Dr. G noted that the Hawaii RO referred the Veteran to Dr. F in July 1992. Dr. G asked Dr. F's assessment of another physician's opinion that the Veteran had fibromyalgia with IBS and irritable bladder syndrome. Similar to his March 2000 report, Dr. G provided Dr. F with a comprehensive review of the Veteran's history. Dr. G noted the Veteran exhibited a correlation between her level of stress/depression and her constipation/ diarrhea symptomatology. Dr. G referenced VA treatment records of August 1987 that noted the Veteran's complaints of diarrhea with abdominal cramping times one week, which was present during and after a tour of ACDUTRA. Dr. G opined the symptoms were most likely due to the stress of the tour. Dr. G noted VA prescribed medication for IBS in 1999, and records of a private local clinic of October 2002 noted symptoms which were diagnosed as constipation associated with anxiety and depression. Dr. G noted particular drugs exacerbated IBS, and he noted further the Veteran was prescribed Nefazodone to address the Veteran's depression. This was noted in the Veteran's private records of October and November 1995. Dr. G opined Nefazodone was known to cause GI complaints due to increased blood toxicity. Dr. G opined the Nefazodone, including in combination with other drugs prescribed for the Veteran, was most likely the cause of the Veteran's IBS. The March 2011 VA examination report reflects that the examiner conducted a review of the claims file as part of the examination. The examination report notes the Veteran reported a history of IBS since 2000 with alternating constipation/diarrhea, and her symptoms had progressively worsened since. The examiner did note the August 1999 VA entry related to IBS. Based on the review of the claims file and the examination of the Veteran, the examiner opined there was less than a 50- percent probability the Veteran's IBS was due to her service-connected organic mood disorder, to include medication taken for the mood disorder. The examiner noted the applicable medical literature did not support a direct or aggravating connection between the organic mood disorder and IBS. The examiner further noted that the case was discussed with both the psychology and GI service. The examiner noted that IBS is the most commonly diagnosed GI condition, as it accounts for approximately 30 percent of all referrals to gastroenterologists. The pathology of IBS remains uncertain, and it is viewed as a disorder that results from an interaction among a number of factors. Despite multiple investigations, the data have been conflicting and no abnormality has been found to be specific to the disorder. The examiner rendered a similar negative opinion on causation and aggravation as concerns the Veteran's bladder disorder, to include as a result of medications prescribed for the Veteran. The examiner noted the case was discussed with psychology. Upon review of the Veteran's appeal in October 2012, the Board found the examiner did not discuss the potential impact of the Veteran's prescribed medications on her IBS and bladder disorder. The Board also noted that a December 2011 rating decision granted service connection for fibromyalgia. The Board noted further that an April 2002 medical record noted the Veteran had been prescribed Celebrex for her fibromyalgia, and that it was causing GI discomfort. Consequently, the Board remanded the case so the examiner could address those matters in an addendum. The November 2012 addendum to the March 2011 examination report reflects that the examiner provided an extensive expose of the literature on studies conducted on IBS. The Board notes that the literature discussed focused on the organic causes such as potential pathogens, the occurrence after a specific GI infection, and hereditary factors. The examiner again noted no specific etiology for the disorder was revealed. The only specific reference to a medication was that the examiner noted the associated literature noted a connection between antibiotics prescribed for GI infection and IBS. The examiner noted the medical literature did not document any relationship between organic mood disorder or fibromyalgia and the development of IBS, to include medications prescribed to treat both conditions. The examiner noted again that the case was discussed with the GI service. The examiner again provided a similar rationale as concerned the Veteran's bladder disorder. There is no connection, either direct or via aggravation, between it or the Veteran's organic mood disorder or fibromyalgia, to include medications used to treat either disorder. The Board notes that both the VA and the above-discussed private opinions reflect that the examiners reviewed the available medical records extant to them and provided rationales for the respective opinions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) ( Medical opinion must fully discuss reasons and bases for opinion); see also Prejean v. West, 13 Veteran. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion.). The Board finds, however, that although their opinions were published several years ago, Doctors G's and J's opinions, if not entitled to greater weight, at least place the scales in equipoise. See 38 C.F.R. § 3.102. The Board notes that while the VA examiner noted the Veteran's case was discussed with the GI and psychology service, no specifics of those consultations are provided in either the March 2011 examination report or the November 2012 addendum. Further, the Board is struck by the complete absence of any reference by the VA examiner to Dr. G's or Dr. J's contrary opinions of record. This is a critical factor, as both Doctors G and J opined the Veteran's IBS and bladder disorder were due to the effects of her dealing with the long-standing stress caused by her head injury. Other than a generic conclusory reference to a consultation with psychology service, the VA opinion did not directly discuss the impact of stress. As concerns the impact of medication, Dr. G opined that a specific drug, Nefazodone, was instrumental in causing the Veteran's GI symptoms; and, a VA entry noted the potential culpability of Celebrex. The VA examination report and addendum addressed medications in a broad general manner. There was no specific discussion of those two named drugs. The Board notes similar shortcomings in the VA opinions as concerns the bladder disorder: the opinions of Doctors G and J were not referenced or discussed. This is especially troublesome with the bladder disorder, as the November 2012 addendum specifically notes that urinary incontinence is common in persons with cognitive impairment. The evidence of record shows compellingly that the Veteran has long-standing cognitive impairment due to her service-connected disability. The Board discerns no basis on which to again remand the case for further medical input. See Mariano v. Principi, 17 Vet. App. 305 (2003). In light of all of the above, the Board finds the evidence of record is at least in equipoise as concerns service connection on a secondary basis. 38 C.F.R. §§ 3.102, 3.310. ORDER Entitlement to service connection for IBS as secondary to a service-connected organic mood disorder is granted. Entitlement to service connection for a bladder disability as secondary to a service-connected organic mood disorder is granted. REMAND The March 2011 VA examination report reflects the examiner's opinion that the Veteran's essential hypertension did not have its onset in active service or within one year thereafter, see 38 C.F.R. §§ 3.303, 3.307(a), and 3.309(a), nor was it caused or aggravated by the Veteran's organic mood disorder. The examiner also opined that the Veteran's organic mood disorder did not aggravate her hypertension. As discussed in the decision above, the examiner provided only a general comment that the Veteran's case was discussed with psychology. No specifics are noted. There is no discussion of the Veteran's reported history that her blood pressure increases under extreme stress. The Veteran submitted treatment records following the hearing that showed her treatment at an emergency room for elevated blood pressure around the time of her hearing. Specifically, a March 2011 record notes she arrived at an emergency room via ambulance, and her blood pressure was 148/106. The additional evidence received from the Veteran in July 2013 includes a script from a private physician, MGS, M.D., that notes the Veteran's labile hypertension is affected by her anxiety. An appropriate examiner needs to review the file and render an appropriate opinion. The hypertension claim was not discussed in the October 2012 Board remand. Hence this is not a remand for noncompliance. See Stegall, supra. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO will ensure that all relevant treatment records, VA or non-VA, generated since the prior remand are added to the claims file. 2. After the above is complete, the AMC/RO will send the claims file to the examiner who conducted the March 2011 examination. Ask the examiner to provide a specific rationale for the opinion that there is not at least a 50-percent probability that the Veteran's service-connected organic mood disorder aggravates-that is, chronically worsens, her hypertension. The examiner is asked to specifically address the documented instances where the Veteran has presented with elevated blood pressure readings concomitant with episodes of reported increased stress or depression. The examiner is also asked to provide the specifics of any consultations with other medical professionals, such as psychiatrists or psychologists. In the event the examiner who conducted the March 2011 examination is no longer available, refer the claims file to an equally qualified examiner. Should the substitute examiner advise the requested opinion cannot be rendered without an examination of the Veteran, the AMC/RO will arrange the examination. The claims file must be provided for review by the examiner as part of the examination. 3. After completion of all of the above, the AMC/RO should re-adjudicate the claim on appeal. If the decision remains in any way adverse to the Veteran, she and her representative, if any, should be provided with a Supplemental statement of the case (SSOC). The case should thereafter be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. VA will notify him if further action is required on his part. He 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). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs