Citation Nr: 1329106 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 09-38 121 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Anchorage, Alaska THE ISSUES 1. Entitlement to service connection for gastroesophageal reflux disease. 2. Entitlement to service connection for irritable bowel syndrome with spastic colon and constipation. 3. Entitlement to service connection for degenerative disc disease of the cervical spine. 4. Entitlement to service connection for numbness and tingling of the upper extremities, claimed as secondary to degenerative disc disease of the cervical spine. 5. Entitlement to service connection for degenerative disc disease of the thoracic spine. 6. Entitlement to service connection for degenerative joint disease of the left shoulder. 7. Entitlement to service connection for degenerative joint disease of the right shoulder. 8. Entitlement to service connection for torn bicep of the right arm, claimed as secondary to degenerative joint disease of the right shoulder. 9. Entitlement to an initial evaluation in excess of 30 percent for anxiety disorder and dysthymic disorder. 10. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The Veteran served on active duty from January 1977 to August 1978 and from February 1979 to December 1984. He had additional service in the National Guard. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). By rating action dated December 2008, the RO denied the Veteran's claim for service connection for each disability at issue. An April 2009 rating decision granted service connection for anxiety disorder and assigned a 30 percent evaluation for it. The Veteran disagreed with the assigned rating. The issues of service connection for degenerative disc disease of the cervical spine; numbness and tingling of the bilateral upper extremities, on a secondary basis; degenerative disc disease of the thoracic spine; degenerative joint disease of the right shoulder; degenerative joint disease of the left shoulder; and for torn bicep of the right arm, on a secondary basis; entitlement to an initial evaluation in excess of 30 percent for anxiety disorder and dysthymic disorder; and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office. FINDING OF FACT It is not shown that the Veteran has gastroesophageal reflux disease or irritable bowel syndrome with spastic colon and constipation that is related to service. CONCLUSIONS OF LAW 1. Gastroesophageal reflux disease was not incurred in or aggravated by active service or active duty for training. 38 U.S.C.A. §§ 101(24), 106, 1131, 5107 (West 2002). 2. Irritable bowel syndrome with spastic colon and constipation was not incurred in or aggravated by active service or active duty for training. 38 U.S.C.A. §§ 101(24), 106, 1131, 5107 (West 2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of his claim prior to its initial adjudication. A letter dated in January 2008 explained the evidence necessary to substantiate his claims, the evidence VA was responsible for providing, and the evidence he was responsible for providing. This letter also informed the appellant of disability rating and effective date criteria. He has had ample opportunity to respond and supplement the record, and has not alleged that notice in this case was less than adequate. The Veteran's service treatment records and pertinent post-service treatment records have been secured. The RO arranged for VA examinations. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide these matters, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any evidence that remains outstanding. VA's duty to assist is met. Factual background, legal criteria and analysis The Board has reviewed all of the evidence in the appellant's claims file and in Virtual VA. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that each item of evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence of record shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires evidence of: (1) a current disability (for which service connection is sought); (2) evidence of incurrence or aggravation of a disease or injury in service; and (3) evidence of a nexus between the claimed disability and the disease or injury in service. See Shedden v, Principi, 381 F.3d 1153, 1166-1167 (Fed. Cir. 2004). The term "active military, naval, or air service" includes active duty, any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C.A. § 101(24). Under the law, service connection may be granted for disability resulting from disease or injury incurred in or aggravated while performing active duty for training or injury incurred or aggravated while performing inactive duty training. 38 U.S.C.A. §§ 101(24), 106, 1110, 1131. The service treatment records disclose the Veteran complained of abdominal pain, diarrhea, nausea and headache intermittently for two weeks in February 1981. Probable viral gastroenteritis was noted. He had complaints of headaches, nausea and being rundown for the previous three weeks in April 1983. It had started with an upper respiratory infection and bronchitis. His abdominal cramping pains and nausea had persisted. His stools were soft, but he did not have diarrhea. The assessment was he probably had two viral infections, first an upper respiratory infection and then gastroenteritis with bronchitis persisting from the first. He was then hospitalized the next month for acute viral gastroenteritis. He was noted to be doing better two days later, which was said to be expected for acute viral gastroenteritis. On a report of medical history in November 1984, the Veteran denied stomach trouble or frequent indigestion. The abdomen and viscera were evaluated as normal on the separation examination in November 1984. Records apparently from the Veteran's period of National Guard service show he felt a bit nauseated in January 1986. The assessment was gastrointestinal irritability (nausea) of unknown etiology. The next day, he stated the nausea was gone. He had a large emesis later after taking medication. He stated he had felt nauseated prior to taking the medication. It was stated the Veteran was allergic to the medication he had taken. On VA examination in October 1986, the Veteran related no pertinent past medical history and had no abdominal complaints. An examination of the abdomen reveals it was soft, with no masses or tenderness. A fitness for duty evaluation in September 2001 discloses the Veteran felt he had been repeatedly retaliated against. He reported chest pain, irritable bowel syndrome with severe bowel cramping and diarrhea, as well as anxiety attacks and nightmares. It was reported he went on a vacation in January 2001 and felt fine with no problems until his return home on the airplane, when he began to get anxiety attacks. He stated the bowel cramping and pain were so bad sometimes that he could not go to work or function. He also related he acquired an intestinal bacterium from eating contaminated food in early 1994. In preparation for the fitness for duty evaluation, the examiner referred the Veteran to a psychiatrist who diagnosed mood disorder, not otherwise specified, which he felt most resembled an adjustment disorder. The Axis III diagnosis was irritable bowel syndrome. It was noted the Veteran took medication when his bowels really bothered him. The present assessment was adjustment disorder with mood disorder due to on-the-job stressors with irritable bowel syndrome. The examiner concurred the disability was in the line of duty. A medical evaluation board re-evaluation summary about two years later shows the Veteran reported he had stomach cramps the previous summer. The Axis III diagnosis was irritable bowel syndrome, by history. The Veteran was admitted to a private hospital in November 2003. It was reported he suffered from irritable bowel syndrome, which tended to worsen when under stress. On discharge, he was prescribed medication for abdominal cramps. A December 2004 physical evaluation board reflects a diagnosis of irritable bowel syndrome. It was noted it was a condition that could be unfitting, but was not currently compensable or ratable. VA outpatient treatment records reveal the Veteran was seen in January 2005 and denied diarrhea, constipation, nausea and vomiting. The Veteran was afforded a VA examination of the intestines in June 2009. The examiner noted she reviewed the Veteran's medical records. The Veteran reported irritable bowel syndrome and stated it had its onset in 1996. He asserted it all started after he "blew the whistle on the commander." He claimed he was harassed and the subject of an intensive investigation. He maintains he was given bad reports and had his security clearance pulled. He states he won in the end, but alleges that he had severe stomach pain while he was under scrutiny. He had minimal, if any, heartburn, and he did not have diarrhea. The worst part was the abdominal pains. He related he was OK after he retired and was able to move away from that environment. He added that every time he finds something that brings memories of the retaliation, he has abdominal pains, becomes anxious, and cannot function. He categorically stated his symptoms of abdominal pain were directly triggered by memories or exposure to situations that remind him of his military experience. He denied any other symptom. He denied any digestive symptom, and specifically denied heartburn, regurgitation or weight loss. He denied a history of nausea or vomiting, and stated he had constipation less than monthly. He also denied diarrhea. The diagnosis was recurrent abdominal pain triggered by memories of stressful circumstances. Irritable bowel syndrome with spastic colon and constipation was associated with this problem. The examiner noted the Veteran claimed gastroesophageal reflux disease with hiatal hernia and irritable bowel syndrome were related to service or his service-connected anxiety disorder. She pointed out the service treatment records reflected some treatment for episodes of stomach pain, lower quadrant pain and gastritis, but there were no records showing a diagnosis of gastroesophageal reflux disease or irritable bowel syndrome in service. Post-service treatment records show irritable bowel syndrome and indicate it is possibly related to anxiety and dysthymia, but there is no clear medical link associating the disabilities. The examiner also observed the Veteran denied symptoms of gastroesophageal reflux, hiatal hernia and irritable bowel. The Veteran categorically stated that during service, he suffered and continues to suffer epigastric pain triggered by memories of retaliation from when he became a whistle blower. He was symptom-free as long as he stays away from memories or events related to the period when he blew the whistle. He experiences severe abdominal pain when he talks with individuals involved in the whistle blowing. He also noted he was experiencing the same symptoms when he was fired from his civil service job, and that the symptoms were not specific to service. After interviewing and examining the Veteran, it was the physician's opinion that the Veteran did not suffer from gastroesophageal reflux or irritable bowel/spastic colon during service. The examiner observed he denied having experienced any symptoms compatible with the conditions in service. She added the Veteran was, and is experiencing abdominal pain as a normal physiological response to stress, and that the condition reported by the Veteran during service is a normal physiological response to stress. The response was not caused or aggravated by or a result of service. She noted he is no longer in service, and tends to experience the same normal physiological response when exposed to civilian stressors. The examiner also related that symptoms of stress are a natural and biological response to emotional and physical threats. Common stress symptoms include irritability, muscular tension and a constellation of physiological reactions, such as headaches, abdominal pain, diarrhea, constipation, and nausea. The Veteran was also afforded a VA examination of the esophagus in June 2009. There was a history of esophageal distress that occurred less than weekly. There was no history of heartburn or regurgitation. The diagnosis was recurrent abdominal pain as a normal physiological response triggered by memories of stressful circumstances. Gastroesophageal reflux disease with hiatal hernia was associated with the above. The Veteran was afforded VA examinations for irritable bowel syndrome and for diseases of the esophagus in June 2011. The examiner noted she reviewed the medical records. The Veteran categorically denied suffering from gastroesophageal reflux disease, hiatal hernia or irritable bowel syndrome. He categorically stated his symptoms of anger and stress were specifically triggered by any interaction with the Government and the National Guard. There was no history of nausea or vomiting associated with esophageal disease, and there was no heartburn, regurgitation, vomiting, constipation, diarrhea, intestinal pain or ulcerative colitis. The diagnosis on each examination was normal, with no evidence of pathology. The examiner concluded the Veteran does not suffer from irritable bowel syndrome, gastroesophageal reflux disease or hiatal hernia. She stated the supportive evidence was the lack of evidence of record demonstrating the existence of the listed conditions, and the Veteran's statements in which he categorically denied suffering from any upper or lower gastrointestinal condition. The examiner noted a May 2011 visit to his primary care provider and there was no indication of any gastrointestinal disability, to include irritable bowel syndrome. In addition, she pointed out the Veteran has a deep resentment towards the Government and a deep distrust in the uniformed services, including the National Guard. She stated his condition was not anxiety, but anger and resentment. She opined that his time in service did not cause or aggravate and was not the result of any of the gastrointestinal symptoms/conditions listed above. Virtual VA records show the Veteran was seen in a VA outpatient treatment clinic in May 2011 and reported he had been getting irritable bowels. He denied nausea, vomiting, gastroesophageal reflux disease, and abdominal pain. In June 2011, he reported indigestion or discomfort in the abdomen. The Board acknowledges the Veteran was seen on a few occasions during his period of active duty for acute viral gastroenteritis. However, no gastrointestinal abnormalities were documented on the separation examination in November 1984. As noted above, clinical evaluations were normal at that time. In addition, fitness for duty and medical evaluation board reports show an Axis III diagnosis of irritable bowel syndrome. It is significant to point out that the Veteran has been examined by the VA in June 2009 and again in June 2011. On the earlier examination, it was specifically indicated the Veteran denied that he had symptoms associated with gastroesophageal reflux disease or irritable bowel syndrome during service. The examiner commented his abdominal symptoms were a normal physiological reaction to stress. Thus, it is clear she believed he did not have these conditions. The same examiner determined in June 2011 that the examination was normal, and the Veteran did not have any evidence of pathology. The preponderance of the evidence is, therefore, against a finding that the Veteran has gastroesophageal reflux disease or irritable bowel syndrome. Congress specifically limited entitlement to service-connection to those instances where a disease or injury in service resulted in a chronic, currently shown disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992). In the absence of competent evidence the Veteran has gastroesophageal reflux disease or irritable bowel syndrome, service connection for these disabilities is not warranted. . The Board has considered the applicability of the benefit of the doubt doctrine. As the preponderance of the evidence is against these claims, that doctrine does not apply. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). ORDER Service connection for gastroesophageal reflux disease or for irritable bowel syndrome with spastic colon and constipation is denied. REMAND The Veteran also asserts service connection is warranted for degenerative disc disease of the cervical spine, numbness and tingling of the upper extremities, as secondary to a cervical spine disability, degenerative disc disease of the thoracic spine, degenerative joint disease of each shoulder and torn bicep of the right arm, as secondary to a right shoulder disability. The record indicates that in addition to his active duty service, the Veteran also had service with the National Guard, but such service has not been verified. In addition, it does not appear that all medical records from the Veteran's National Guard service have been obtained. With respect to the claim for service connection for a cervical spine disability, the Board points out that following the April 2008 VA examination of the joints, the examiner commented "[t]he evidence is clear that the cervical spine degenerative disc disease began in the service and is most likely caused by or a result of cervical disc disease identified in the service, records. In addition, the numbness and tingling present is identified in the service records and is part of the cervical spine disease and not part of the shoulder conditions." The examiner referred to X-rays in January 1998 that showed degenerative disc disease. This was apparently noted in a September 2001 fitness for duty evaluation. It was further indicated there was radiation into the left hand with numbness and pain in the ulnar nerve distribution. The examiner also cited magnetic resonance imaging of the cervical spine that documented progression of the cervical degenerative disc disease. The RO requested the VA examiner provide an additional opinion. In August 2008, the examiner determined the Veteran's cervical spine degenerative disc disease was not caused by or a result of cervical torticollis that required five visits in 1982. He pointed out that the in-service treatment was for cervical torticollis which is a spasm of the neck musculature. The condition resolved with treatment, and the Veteran's next complaint of cervical pain surfaced in 2006, when X-rays of the cervical spine demonstrated degenerative disc disease. The examiner noted that 24 years had passed without a visit for cervical symptoms and, therefore, the degenerative disc disease of the cervical spine did not result from the single episode of muscle spasm manifested as a torticollis of the cervical spine. In December 2008, another VA physician opined that X-rays and magnetic resonance imaging in April 2008 revealed extension of the cervical spine spondylosis from the lower cervical spine down to the level of T-1. The findings appeared to be age-related and quite minor with no lesions that appear to be trauma-related. Thus, with the radiological evidence and history of muscle strain, the examiner concluded that on a less likely than not basis, the cervical and upper level thoracic degenerative disc disease and spondylosis would not be associated with the lumbar degenerative disc disease. Given the conflicting opinions of record, the Board believes another VA examination is appropriate to determine the etiology of the Veteran's cervical spine disability. The Veteran also claims a higher initial evaluation should be assigned for his service-connected psychiatric disability. In correspondence received in January 2013, the Veteran's wife stated his condition was worsening. She noted the Veteran cannot stand to be in crowds and that he has relapses, even on medication. The Board notes the most recent VA psychiatric examination was conducted in November 2009. At that time, the diagnoses were anxiety disorder, not otherwise specified and dysthymia. A Global Assessment of Functioning score of 55 was assigned. The examiner commented the Veteran was reporting a moderate level of impairment in occupational and psychosocial functioning. The United States Court of Appeals for Veterans Claims has held that where the veteran claims that a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, the VA must provide a new examination. Olson v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629 (1992). While the mere passage of time does not obligate the VA to conduct a new examination, the Board finds it is appropriate in this case in light of the allegations that the psychiatric disability has increased in severity. Entitlement to a TDIU is an element of all claims for a higher rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a TDIU is raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); see Jackson v. Shinseki, 587 F.3d 1106 (2009) (holding that an inferred claim for a TDIU is raised as part of an increased rating claim only when the Roberson requirements are met). The Board notes that in her January 2013 communication with the VA, the Veteran's spouse asserted nobody would hire the Veteran to work a full day when there are times he can hardly complete the basics of a day. A January 2013 letter from the Veteran's attorney specifically requested the VA consider a claim for TDIU. The Board finds, therefore, that the issue of entitlement to a TDIU has been raised. Prior to adjudication of the TDIU issue, however, the Board finds that further evidentiary development is necessary. Service connection is currently in effect for anxiety disorder and dysthymic disorder, evaluated as 30 percent disabling; degenerative disc disease of L4-L5, evaluated as 20 percent disabling; and for chronic left sciatica, evaluated as 10 percent disabling. The combined schedular evaluation is 50 percent. Accordingly, the case is REMANDED for the following action: 1. The RO should verify all periods of the Veteran's National Guard service, to include active duty for training and inactive duty for training. 2. The RO should request from any appropriate authority the medical records from the Veteran's service with the National Guard. 3. In light of the newly inferred TDIU claim, complete any development deemed necessary, to include ensuring notice obligations are satisfied. 4. The RO should schedule VA orthopedic and neurologic examinations to determine the nature and etiology of the Veteran's degenerative disc disease of the cervical spine, and the current severity of the Veteran's lumbar spine disability and chronic left sciatica. The examiner is requested to provide an opinion concerning whether it is at least as likely as not (50 percent probability or higher) that the Veteran's cervical spine disability is related to service, to include his service in the National Guard. If it is related to service, the examiner is also requested to provide an opinion concerning whether it is at least as likely as not that any service-connected disability caused or aggravated (permanently worsened the underlying disorder beyond its normal course) the Veteran's numbness and tingling of the upper extremities. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of the numbness and tingling (i.e., a baseline) before the onset of the aggravation. The examiner must provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner must provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. The claims folder must be made available to the examiners in conjunction with the examinations. With respect to the Veteran's service-connected degenerative disc disease of L4-L5, and left sciatica, all indicated studies must be completed, to include specifically range of motion studies, active and passive, of the low back. The examiner must note any additional functional limitations due to such factors as pain, use, etc. The examiner is requested to provide an opinion as to whether the Veteran's service-connected lumbar spine disability renders him unable to secure or follow a substantially gainful occupation. A detailed rationale is requested for the opinion provided. 5. Schedule a VA psychiatric examination to determine the nature and severity of the Veteran's anxiety disorder. The examination report should include a detailed account of all pathology found to be present. If there are psychiatric disorders other than anxiety disorder, the examiner should reconcile the diagnoses and should specify which symptoms are associated with each of the disorder(s). If certain symptomatology cannot be dissociated from one disorder or another, it should be specified. The examiner should describe how the symptoms of anxiety disorder affect the appellant's social and industrial capacity, and whether the condition is permanent in nature. The report of the examination should include a complete rationale for all opinions expressed. All necessary special studies or tests are to be accomplished. The examiner should assign a GAF score. The claims folder must be made available to the examiner for review in conjunction with the examination. 6. The RO should then review the record and adjudicate the remaining claims for service connection and an increased rating. and the claim for TDIU. The RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further appellate consideration. 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). ______________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs