Citation Nr: 1327446 Decision Date: 08/27/13 Archive Date: 09/05/13 DOCKET NO. 09-37 804 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for irritable bowel syndrome, claimed as a stomach condition, diarrhea and weight loss, to include as due to undiagnosed illness. 2. Entitlement to service connection for a right shoulder disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD E. Joyner, Counsel INTRODUCTION The Veteran served on active duty from March 1989 to March 1993. Thereafter, he had additional service with the Ohio Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The November 2007 rating decision also denied reopening of the Veteran's claims of entitlement to service connection for nightmares and memory loss, hot and cold flashes, hair loss, and defective hearing. Although the Veteran perfected an appeal with respect to the November 2007 denial of reopening of the claim for service connection for defective hearing, in a May 2012 rating decision, the RO granted service connection for bilateral hearing loss. As this represents a total grant of benefits sought on appeal with respect to this issue, it is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). In October 2012, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing held at the RO. A transcript of that hearing is associated with the claims file. When the case was previously before the Board in December 2012, the Board reopened and granted the Veteran's claim of entitlement to service connection for dermatitis, and reopened and remanded the Veteran's claims of entitlement to service connection for irritable bowel syndrome (IBS), claimed as a stomach condition, diarrhea and weight loss, to include as due to undiagnosed illness, and entitlement to service connection for a right shoulder disability. A review of the record on appeal reveals that the Veteran served in the Persian Gulf from August 1990 to March 1991. Additionally, in his May 2007 claim (VA Form 21-4138), the Veteran specified that his stomach condition/diarrhea/weight loss was claimed as due to undiagnosed illness. Therefore, the Board has recharacterized this claim to include a claim based on undiagnosed illness. See West v. Brown, 7 Vet. App. 329 (1995) (en banc). Although in his May 2007 VA Form 21-4138 the Veteran also claimed service connection for a right shoulder injury as "however diagnosed," in his original April 1993 claim (VA Form 21-526), the Veteran indicated that he had injured his shoulder. Moreover, at the Veteran's Travel Board hearing, he indicated that he had injured his right shoulder in service, and that the in-service injury is the basis of his claim. As such, the right shoulder disability claim is not considered as based on undiagnosed illness. The Board notes that in April 2009, the Veteran submitted to the RO a VA Form 21-4138, which requests that his claims to reopen be expedited based upon his unemployment status and his impending eviction from his home. The Veteran's request was not addressed by the RO. The Board notes that under 38 C.F.R. § 20.900(c)(2) , motions for advancement on the docket must be filed with the Board. Therefore, the Veteran's request is not a valid motion for advancement on the docket; however, the Veteran is not precluded from filing such a motion with the Board. Although the appellant submitted additional evidence and argument after the case was certified to the Board, in the July 2013 Appellant's Brief, the appellant's representative waived RO consideration of such evidence in the first instance. As such, the Board may proceed with the appeal. 38 C.F.R. § 19.9(d)(3) (2012). The issue of entitlement to service connection for a right shoulder disability 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 It is at least as likely as not that the Veteran's chronic diarrhea had its onset during service, and that he has had ongoing symptoms of diarrhea since service. CONCLUSION OF LAW The criteria for service connection for chronic diarrhea have been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board grants entitlement to service connection chronic diarrhea, which constitutes a complete grant of the Veteran's claim. Therefore, no discussion of VA's duty to notify or assist is necessary. Legal Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including arthritis, will be presumed to have been incurred in service if manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran is not diagnosed with a disability recognized as a chronic disability in 38 C.F.R. § 3.309(a). 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 benefits. In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, 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. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. In this case, the Veteran contends that he is entitled to service connection for IBS, which he has described as a stomach condition, diarrhea, and weight loss, to include as due to undiagnosed illness because it was incurred during service. Specifically, he maintains that during service, he suffered from diarrhea, and that he has continued to suffer from diarrhea ever since service. The March 1993 service separation report of medical history reflects that the Veteran indicated he had stomach, liver, or intestinal trouble. The December 1, 1993 Persian Gulf Registry Code Sheet reflects a diagnosis of irritable colon syndrome. The examiner noted that the onset of this disability was 1990. The December 1993 Persian Gulf Registry history part 1 notes a chief complaint of intermittent diarrhea. The Veteran stated that he is bothered by diarrhea, but only occasionally. He reported stress due to divorce, unemployment, and family illness. The December 1993 Persian Gulf Registry history part 2 reflects that the Veteran was treated for diarrhea in August 1990 in Saudi Arabia, and again before leaving Saudi Arabia. Further, it was noted that he continued to have diarrhea from April 1990 to March 1993. Part 3 of the history from the Persian Gulf Registry reflects the Veteran's complaints of intermittent diarrhea since service in Desert Storm. He has not had weight loss, pain, cramping, constipation or vomiting. A September 1994 VA treatment record reflects the Veteran's complaints of intermittent diarrhea since returning from the Persian Gulf. A September 1994 VA abdominal X-ray study performed due to complaints of intermittent diarrhea and pain was unremarkable except for slight reflux. A March 1995 VA treatment record notes an impression of irritable bowel syndrome. An undated statement from the Veteran's former spouse indicates that she witnessed the Veteran experience severe intestinal/digestive disorders since his return from the Persian Gulf. A private treatment record from February 2007 reflects a diagnosis of diarrhea. A June 2009 VA treatment record notes the Veteran's complaint of having diarrhea first thing in the morning and every time he eats. He denied abdominal pain, weight loss, nausea, vomiting, constipation, and blood in the tools. He denied abdominal pain or cramping with his diarrhea. The diagnosis was diarrhea. The examining physician opined that because the only symptom the Veteran has is looses stools every time he eats, the prior diagnosis of irritable bowel syndrome is doubtful and the diarrhea is not caused by irritable bowel syndrome. Another June 2009 VA treatment record reflects the Veteran's complaints of having chronic diarrhea since his discharge from service. A February 2010 VA treatment record notes the Veteran's complaints of chronic diarrhea for 18 years. He stated that he had three loose stools the previous day. At the Travel Board hearing the Veteran stated that he has had diarrhea since he was in service. A January 2013 VA examination report reflects a diagnosis of chronic diarrhea. The examiner opined that the Veteran does not meet the Rome III Diagnostic Criteria for a diagnosis of IBS. The examiner stated that the Veteran's only symptoms associated with his diarrhea are loose stools; he does not have abdominal pain that is associated with his diarrhea. The examiner further found that the Veteran does have chronic, progressive complaints of diarrhea that initiated in service and he continues to complain of a diagnosis of chronic diarrhea. The examiner concluded that the chronic diarrhea is at least as likely as not incurred in or caused by service. In considering all of the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to service connection for chronic diarrhea. The Veteran's service treatment records show that he complained of and was treated for diarrhea on a few occasions during service. Additionally, post-service medical records show treatment for diarrhea since service, and the January 2013 VA examiner opined that it is at least as likely as not that the Veteran's chronic diarrhea is etiologically related to active service. Moreover, the Veteran is competent to report symptoms of chronic diarrhea. Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). There is no contrary evidence and no reason to question the Veteran's credibility. Therefore, the Board finds that the Veteran experienced chronic symptoms of diarrhea during service and ever since. See Jandreau v. Nicholson, 492 F.3d 1372 (2007) (holding that lay evidence can be competent and sufficient to establish a diagnosis of a condition when a lay person is competent to identify the medical condition, or reporting a contemporaneous medical diagnosis, or the lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). In sum, the Board finds that because the Veteran is competent to report symptoms of diarrhea in service, continuous diarrhea symptomatology since service, and current symptoms that form the basis for diagnosis of chronic diarrhea, such evidence tends to relate the Veteran's currently diagnosed chronic diarrhea to service. See Davidson, 581 F.3d at 1316 (holding that competent medical evidence is not necessarily required where the determinative issue in a case involves medical causation or a medical diagnosis). The Board finds that the Veteran's account is credible, and importantly, the only medical opinion of record is in favor of the claim. Therefore, the Board finds that the evidence of record establishes that the Veteran had chronic diarrhea during active service and that Veteran has presented credible and competent statements regarding ongoing symptoms of diarrhea since service. Although there are previous diagnoses of irritable bowel syndrome and slight reflux, and there are current findings of gastroesophageal reflux disease in the VA treatment records active problems and prior medical history list, the Board finds that the symptoms experienced by the Veteran during service and ever since mainly involve his chronic diarrhea, and regardless of the diagnosis, it is the symptoms of chronic diarrhea for which the Veteran is seeking service connection. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (finding that "when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled"). Resolving any reasonable doubt in the Veteran's favor, the Board finds that service connection for chronic diarrhea is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 3.303(b) (2012). The Board also points out that the Veteran served as a fighting vehicle infantryman in the Southwest Asia Theatre of Operations and he is thus entitled to the presumptions afforded him by 38 U.S.C.A. § 1117 (West 2002 and Supp. 2012) and 38 C.F.R. § 3.317 (2012). However, because direct service connection has been granted, there is no need to discuss this other theory of entitlement to service connection. ORDER Entitlement to service connection for chronic diarrhea is granted. REMAND If VA undertakes the effort to provide the Veteran with a medical examination, it must ensure that such exam is an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A medical opinion must support its conclusion with an analysis the Board can consider and weigh against other evidence in the record. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Furthermore, a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008). Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App 268 (1998). In the December 2012 Board remand, the RO/AMC was instructed to schedule the Veteran for a VA joints examination to determine the etiology of his right shoulder disability. The examiner was instructed to provide an opinion as to whether the Veteran's currently diagnosed right shoulder disability, to include his diagnosed grade 2 acromioclavicular separation injury of the right shoulder and mild degenerative joint disease of the acromioclavicular joint, is at least as likely as not related to his active military service. The examiner was specifically instructed to presume for examination purposes that the Veteran injured his right shoulder during service as he suggested at his October 2012 Board hearing and as stated in the December 1, 1993 Persian Gulf Registry clinical history part 2. The examiner was further instructed to comment as to the Veteran's in-service right shoulder injury, his complaints of ongoing right shoulder symptomatology since service, his previous arthroscopic surgeries, and his current right shoulder diagnoses. The January 2013 VA examination report reflects the examiner's opinion that the Veteran's degenerative joint disease of the right shoulder is less likely than not incurred in or caused by the claimed in-service injury because the service treatment records indicate injury to the left shoulder, not the right shoulder, and the records are silent as to treatment for a right shoulder condition in service. The opinion is based upon an inaccurate factual premise in that it failed to provide an opinion consistent with the remand directives. Notably, the rationale for the opinion is that there is no evidence of an injury to the right shoulder or treatment for a right shoulder condition in service. Because the December 2012 remand instructed the examiner to presume that the Veteran injured his right shoulder during service, and pointed to the December 1, 1993 Persian Gulf Registry clinical history part 2, which specifically indicates that the Veteran injured his right shoulder in service, the Board finds that a remand is required for a medical opinion based upon an accurate review of the Veteran's documented medical history, which follows the remand directives, and which includes a complete rationale. Additionally, the December 2012 remand instructed the RO/AMC to contact the appropriate Federal sources and the Ohio Army National Guard and confirm the Veteran's specific dates (not retirement points) for the Veteran's periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA). The RO/AMC was also instructed to obtain the Veteran's service personnel records and service treatment records from his period of National Guard service as well. The record reflects that the Veteran's service personnel records were obtained. However, the service treatment records from the Veteran's National Guard service were not obtained nor were the specific dates of his periods of INACDUTRA. A January 2013 letter from The Adjutant General's Department indicates that the Veteran enlisted in the Ohio Army National Guard on March 27, 1993 and was discharged on March 2, 1997, that he did not have any ACDUTRA, and that he only attended 49 days of weekend drills. A copy of the summary statement of points earned towards retirement was also obtained. However, there claims file does not reflect any negative response for the claims files. As such, the RO/AMC has not substantially complied with the December 2012 remand directives. In this regard, the remand instructs the RO that because this information is held by a Federal agency, efforts to obtain the requested information should be ended only if it is concluded that the information sought does not exist or that further efforts to obtain the information would be futile. If the information cannot be obtained, it was instructed that a memorandum of unavailability should be prepared. Therefore, a remand is required in order to obtain this information. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should contact the appropriate Federal sources and the Ohio Army National Guard and ask each of the agencies/units/organizations to confirm the Veteran's specific dates (not retirement points) for the Veteran's periods of INACDUTRA during his service with the Ohio Army National Guard. Copies of the Veteran's service treatment records for his period of service with the Ohio Army National Guard should be obtained. All actions to obtain the requested information should be documented fully in the claims file. Because this information is held by a Federal agency, efforts to obtain the requested information should be ended only if it is concluded that the information sought does not exist or that further efforts to obtain the information would be futile. If the information cannot be obtained, a memorandum of unavailability should be prepared outlining the steps taken to obtain the information and the Veteran should be provided with a copy of the memorandum. 2. If possible, the claims file should be returned to the VA examiner who conducted the January 2013 examination. After a review of the examination findings and the entire evidence of record, to include the Veteran's testimony at his October 2012 Board hearing, the examiner must provide an opinion as to whether the Veteran's currently diagnosed right shoulder disability, to include his diagnosed grade 2 acromioclavicular separation injury of the right shoulder and mild degenerative joint disease of the acromioclavicular joint) is at least as likely as not (50 percent probability or greater) related to his active military service. The examiner must presume for examination purposes that the Veteran injured his right shoulder during service as he suggested at his October 2012 Board hearing and as stated in the December 1, 1993 Persian Gulf Registry clinical history part 2. The examiner should comment as to the Veteran's alleged in-service right shoulder injury, his complaints of ongoing right shoulder symptomatology since service, his previous arthroscopic surgeries, and current right shoulder diagnoses. Any stated opinion should be supported by a clear rationale, and should include a discussion of the specific evidence on which the opinion is based. If the January 2013 VA examiner is unavailable, another qualified examiner should be requested to provide the same opinion. If a new VA examination needs to be conducted in order to obtain the opinion, then one should be scheduled. All indicated tests and studies should be undertaken. Following a review of the relevant evidence in the claims folder and the clinical evaluation, the new examiner should provide the requested opinion. 3. Readjudicate the issues on appeal. If the benefit sought on appeal remains denied, issue a Supplemental Statement of the Case. After the Veteran and his representative have had an adequate opportunity to respond, return the appeal to the Board. 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). ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs