Citation Nr: 1330886 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 10-19 980 ) 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 stomach disorder, claimed as gastrointestinal disorder (GI), to include as due to in-service appendicitis and peritonitis. 2. Entitlement to service connection for a psychiatric disorder, diagnosed as vascular dementia, to include as due to coronary artery disease (CAD) and hypertension. 3. Entitlement to service connection for a lumbar spine disorder, to include as due to surgery for coronary artery disease. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1951 to October 1955 and from January 1956 to January 1960. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. In June 2012 and May 2013, the Board remanded the issues on appeal so that the Veteran could receive corrective notice, treatment records could be requested, and the RO could obtain additional VA opinions. The case has been returned to the Board for further appellate consideration. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The issues of entitlement to service connection for hypertension and CAD were also before the Board in May 2013, and were remanded for additional development. In a June 2013 rating decision, service connection was established for hypertension and CAD. As this is a full grant of the benefits on appeal, these issues are no longer before the Board. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of entitlement to service connection for a GI disorder and a back disorder are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The evidence indicates that the Veteran's current psychiatric disability, diagnosed as vascular dementia and depression, is causally related to his military service or service-connected disorders. CONCLUSION OF LAW The criteria for establishing service connection for an acquired psychiatric disability (diagnosed as vascular dementia and depression) have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In light of the fully favorable determination in this case, no further discussion of compliance with VA's duty to notify and assist is necessary. The Veteran asserts that he has a current psychiatric disability caused or aggravated by service-connected disorders. Generally, in order to establish direct service connection, three elements must be established. There must be medical evidence of a current disability; medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2012); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be granted for a disability that is proximately due to or the result of an established service-connected disability. 38 C.F.R. § 3.310 (2012). This includes disability made chronically worse by service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Medical records establish that the Veteran has a current psychiatric disability. A February 1996 neuropsychology note indicated a diagnosis of vascular dementia. The examiner noted that the Veteran was experiencing emotional turmoil, and strong feelings of depression, anxiety, and tension. A VA examination dated in November 2012 also noted a diagnosis of vascular dementia, but found that the disorder was not related to service, or a service-connected disorder. However, the Board notes that at this time, the Veteran was not service connected for hypertension or CAD. A private treatment record which notes treatment dated from May to June 2013 indicates the Veteran has been diagnosed with depression, vascular dementia, and dermatitis. During treatment, the Veteran reported that his dermatitis disturbs him and affects his hygiene and mood. He also explained that the prolonged condition saddens him. The Veteran asserted that when he saw his scars, because of past surgeries, he became upset. The examiner noted that his cognitive and motor deficits hindered his ability to interact properly with other people and caused frustration. The examiner found that the Veteran's emotional state was related to his physical appearance, as well as cognitive and motor deficits. Additionally, his scars and dermatitis had an impact on his self-esteem and mood. A June 2013 VA opinion determined that medical literature did not support that CAD caused cerebral vascular disease or vascular dementia. The examiner did not give an opinion as to whether hypertension caused or aggravated the Veteran's mental state, nor did the examiner discuss the Veteran's other service-connected disorders. In light of the evidence that the Veteran has a current psychiatric disorder and all the negative medical opinions of record are unsupported by adequate clinical rationale, the Board concludes that, at the very least, the evidence for and the evidence against the claim are in relative equipoise. When the evidence for and against the claim is in relative equipoise, by law, the Board must resolve all reasonable doubt in favor of the appellant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012). Therefore, the benefit-of-the-doubt will be conferred in his favor and his claim for service connection is granted, subject to the controlling laws and regulations, which govern awards of VA compensation. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.400 (2012); see also Gilbert v. Derwinksi, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a psychiatric disorder, diagnosed as vascular dementia, to include as due to coronary artery disease and hypertension, is granted. REMAND Unfortunately, a remand is required in regards to the Veteran's GI and back claims. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. Such development would ensure that his due process rights, including those associated with 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326, are met. The Board is obligated by law to ensure that the RO complies with its directives, as well as those of the United States Court of Veterans Appeals (Court). The Court has stated that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Court 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). The Veteran was afforded VA examinations in 2009 and 2012, and an opinion was obtained in June 2013 to address these claims; however, the rationales do not provide the necessary information for the Board to make a decision and are thus inadequate. Regarding the Veteran's contentions that his GI disorder is due to or a result of the residuals of his appendicitis, the Board observes that his representative has provided an article on pylephlebitis. The article indicates that complications of pylephlebitis include portal hypertension and venous collaterals in the hepatoduodenal ligament. The June 2013 Board remand specifically asked the examiner to consider the article on pylephlebitis in his opinion; however, there is no mention of the article in the opinion. The case must be returned to the VA examiner for an addendum opinion. The Board notes that the Veteran has also asserted his GI disorders are caused or aggravated by medication for his other service-connected disorders. The Board finds that as the issue is being remanded for an addendum opinion, the examiner should also address this assertion. Regarding the Veteran's contentions that his back disorder is related to his service-connected disorders, the Board notes that Veteran argues that his back pain began, and has continued since, his coronary artery surgery. The June 2013 VA examiner found "the medical literature does not support that an etiologic link exists between CAD and degenerative arthritis of the lumbar spine." The examiner did not specifically give an opinion as to whether that the Veteran's back disorder was aggravated by the Veteran's other service-connected disorders. The Board finds the issue must be returned to the VA examiner for an addendum opinion. See Allen v. Brown, 7 Vet. App. 439, 446 (1995) (holding that if aggravation of a veteran's nonservice-connected disability is proximately due to or the result of a service-connected disease or injury, it too shall be service connected for that degree of aggravation; see also 38 C.F.R. § 3.310 (2012). Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. If possible, the claims file should be returned to the June 2013 examiner for an addendum opinion. If the same examiner is not available, send the claims folder to another appropriate examiner. The claims folder, Virtual VA and a copy of this remand are to be made available to the examiner to review prior to the review. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report. If examination of the Veteran is necessary, appropriate arrangements should be made. The examiner should express an opinion regarding the following: a) Is it as least as likely as not that the Veteran developed a GI disorder as a result of his military service? Please address all diagnosed gastrointestinal disorders. b) Is it at least as likely as not (50 percent or greater probability) that the Veteran developed a GI disorder as a result of his in-service appendicitis and its complications (infection/peritonitis/pylephlebitis)? Please address the September 1976 record addressing intestinal adhesions and the article on pylephlebitis. c) Is it at least as likely as not that the Veteran's GI disorder is caused or aggravated by medications prescribed for other service-connected disorders to include CAD and hypertension? d) Is it at least as likely as not that the Veteran's 1995 CAD surgery caused or aggravated his lumbar spine degenerative changes? e) Is it at least as likely as not that the Veteran's current lumbar spine disability was either (1) caused by or (2) is aggravated by his service-connected disorders. If the examiner determines that the lumbar spine disability was aggravated by any of the service-connected disorders, the examiner should report the baseline level of severity of the lumbar spine disability prior to the onset of aggravation. If some of the increase in severity of the lumbar spine disability is due to the natural progress of the disease, the examiner should indicate the degree of such increase in severity due to the natural progression of the disease. The examiner must provide complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the provided conclusions. If further testing or examination by other specialists is determined to be warranted in order to evaluate the conditions at issue, such testing or examination is to be accomplished prior to completion of the examination reports. The examiner should not invoke the phrase 'without resort to mere speculation' without first explaining the basis for such an opinion. That is, if the examiner is unable to provide the requested opinion without resorting to speculation, the examiner must provide an explanation for the basis of that determination, for example, does the examiner lack the expertise to render such an opinion, or is some additional testing or information needed, and possibly available, which would permit an opinion. If so, a qualified examiner should provide an opinion and/or the additional testing should be accomplished. If the examiner cannot provide an opinion because it cannot be determined from current medical knowledge whether a specific in-service injury or disease can possibly cause the claimed condition, or the actual cause cannot be selected from multiple potential causes, this should be fully explained. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). 2. The RO/AMC should review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the reports of examination. If the requested reports do not include fully detailed descriptions of pathology and all test reports, special studies or adequate responses to the specific opinions requested, the reports must be returned for corrective action. 38 C.F.R. § 4.2; see also Stegall v. West, 11 Vet. App. 268 (1998). 3. Thereafter, the RO/AMC should readjudicate the claims that are now on appeal after taking any other development action that is deemed warranted. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claims for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Veteran 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). ______________________________________________ LANA K. JENG Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs