Citation Nr: 1336003 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 10-06 904 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for irritable bowel syndrome (IBS) including as due to an undiagnosed illness. 2. Entitlement to an increased (compensable) rating for left chondromalacia patella. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD William J. Jefferson III, Counsel INTRODUCTION The Veteran served on active duty from May 1990 to July 1996, including in Southwest Asia. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a March 2007 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2010, as support for his claims, the Veteran testified at a videoconference hearing before the undersigned acting Veterans Law Judge (VLJ) of the Board. A transcript of that hearing has been associated with the claims folder. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran asserts that he has had diarrhea now claimed as IBS during service, and subsequent to his arrival back from the Middle East in late 1991 or 1992. The Veteran's service personnel records confirm that the Veteran served in the Persian Gulf. It is important to point out that service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection is also available for Persian Gulf War Veterans who exhibit objective indications of chronic disability that cannot be attributed to any known clinical diagnosis, but which instead results from an undiagnosed illness or medically unexplained chronic multi-symptom illness that became manifest during active duty in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of 10 percent or more not later than December 31, 2016. See 38 C.F.R. § 3.317 (a)(1). A "Persian Gulf Veteran" is someone who served in the Southwest Asia Theater of operations during the Persian Gulf War. See 38 C.F.R. § 3.317. Effective March 1, 2002 and again October 7, 2010, the law affecting compensation for disabilities occurring in Persian Gulf War Veterans was amended. 38 U.S.C.A. §§ 1117, 1118. Per these changes, the term "qualifying chronic disability" was revised to mean a chronic disability resulting from any of the following (or any combination of the following): (A) an undiagnosed illness; (B) a medically unexplained chronic multi-symptom illness that is defined by a cluster of signs or symptoms, such as: (1) CFS; (2) fibromyalgia; (3) IBS. See 38 C.F.R. § 3.317 (a)(2)(i) (2013). Signs or symptoms of undiagnosed illness and medically unexplained chronic multi-symptom illnesses include, but are not limited to, fatigue, signs or symptoms involving the skin, headache, muscle pain, joint pain, neurological signs or symptoms, any neuropsychological signs or symptoms, signs or symptoms that may involve the respiratory system (upper and lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. In the case of claims for presumptive service connection based on undiagnosed illness under 38 U.S.C.A. § 1117 and 38 C.F.R. §3.117, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service. See Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Further, lay persons are competent to report objective signs of illness. Id. To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or an injury in which the functions affected, anatomical location or symptomatology are similar. See 38 C.F.R. § 3.317(a)(5); see also Stankevich v. Nicholson, 19 Vet. App. 470 (2006). In this case, in the RO requested a medical opinion regarding the claim of service connection for IBS including as due to an undiagnosed illness. In a June 2009 VA medical examination, the Veteran reported chronic diarrhea that began in 1991, after returning from Saudi Arabia. It was reported that he attributed the diarrhea to excessive alcohol intake and he did not seek treatment in service. A past history of irritable bowel syndrome was reported. The diagnosis was irritable bowel syndrome. The examiner opined that service medical records were negative for diarrhea unable make any associations between IBS and gulf war environmental exposures without resorting to mere speculation. Statements like this from the VA clinician, which are inconclusive as to the origin of a disorder, generally cannot be employed as suggestive of a linkage between the disorder and the Veteran's military service. See Warren v. Brown, 6 Vet. App. 4, 6 (1993); Sklar v. Brown, 5 Vet. App. 104, 145-6 (1993). However, these types of opinions also cannot be used to rule out this purported correlation, either. Ultimately, noncommittal opinions like this amount to "nonevidence," neither for nor against the claim, because service connection may not be based on speculation or remote possibility. See generally Bloom v. West, 12 Vet. App. 185 (1999) (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty). An even more recent precedent case also had admonished the Board for relying on medical opinions that also were unable to establish this required linkage, without resorting to mere speculation, as cause for denying the Veteran's claims. See Jones v. Shinseki, 23 Vet. App. 382 (2010). In Jones, the Court noted it was unclear whether the examiners were unable to provide this requested definitive medical comment on etiology because they actually were unable to since the limits of medical knowledge had been exhausted or, instead, for example, needed further information to assist in making this determination (e.g., additional records and/or diagnostic studies) or other procurable and assembled data. The Court in Jones acknowledged there are instances where a definitive opinion cannot be provided because required information is missing or can no longer be obtained or current medical knowledge yields multiple possible etiologies with none more likely than not the cause of the claimed disability. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (noting the Board need not obtain further medical evidence where the medical evidence "indicates that determining the cause is speculative"). The Court in Jones held, however, that in order to rely upon a statement that an opinion cannot be provided without resort to mere speculation, it must be clear that the procurable and assembled data was fully considered and the basis for the opinion must be provided by the examiner or apparent upon a review of the record. In addition, as pointed out by the Veteran's accredited representative at the October 2012 videoconference hearing, in the December 2012 statement of the Case, the RO quoted and appears to rely on regulations prohibiting service connection for any disease or disability that is the result of willful misconduct due to alcohol abuse. It is uncertain here whether the Veteran's IBS is an unexplained chronic multi-symptom illness under 38 C.F.R. § 3.317 (a)(2)(i). As a result additional medical information is required here to determine if the Veteran's symptoms of chronic diarrhea, diagnosed as IBS dating from service in the Persian Gulf gastrointestinal signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness. The remaining claim is an increased (compensable) rating for left chondromalacia patella. Another VA compensation examination is needed to reassess the severity of the disability, especially since the Veteran's last evaluation for compensation purposes was in June 2009, more than 3 years ago, and because of the suggestion these disabilities since have worsened. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). See also Caffrey v. Brown, 6 Vet. App. 377 (1994) (wherein the U.S. Court of Appeals for Veterans Claims (Court/CAVC) determined the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating) and Allday v. Brown, 7 Vet. App. 517, 526 (1995) (indicating that, where the record does not adequately reveal the current state of the claimant's disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination). See, as well, VAOPGCPREC 11-95 (April 7, 1995); and Green v. Derwinski, 1 Vet. App. 121 (1991). Accordingly, the case is REMANDED for the following action: 1. Return the claims file to the examiner who conducted the December 2012 Compensation and Pension examination. If this examiner is not available, the claims file should be forwarded to a physician of the appropriate medical specialty for gastrointestinal disabilities. The examiner should review the December 2012 Compensation and Pension examination report, the claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner is requested to provide an opinion as to whether it is more likely than not, less likely than not, or at least as likely as not the Veteran's claimed and reported symptoms of chronic diarrhea dating from service in South West Asia in 1992 to the present are gastrointestinal signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness? A complete rationale for all opinions must be provided. If the examiner cannot provide a requested Thus, for completeness of the opinion and to ensure it is fully informed, the claims file, including a complete copy of this remand and the Board's prior remand, must be made available for review of the Veteran's pertinent medical and other history. This is especially necessary since the examiner previously indicated he could not respond to a question posed without resorting to mere speculation. So, if this still is the case, the examiner needs to provide more explanation as to why a response is not possible, especially if he is provided additional evidence ("robust substantive documentation") following this additional remand that, unlike previously, would allow him to provide more definitive comment on etiology. If, for whatever reason, it is not possible or feasible to have this same examiner provide this supplemental comment, then have someone else do it that is qualified to make these necessary determinations. In this eventuality, however, the Veteran may need to be reexamined, but this is left to the designee's discretion as to whether another examination is needed or, instead, the requested opinion can be provided merely based on review of the claims file. 2. Thereafter, schedule the Veteran for an appropriate VA examination to determine the nature and extent of the service-connected left knee chondromalacia. The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination. A notation to the effect that this review has taken place should be made in the evaluation report. Any testing deemed necessary, including X-rays, should be performed. All pertinent pathology associated with the service-connected left knee disorder should be noted in the examination report. In particular, the examiner should discuss limitation of motion, instability, or any ankylosis associated with the knee. Also, the examiner should discuss whether the knee exhibits weakened movement, excess fatigability, or incoordination that is attributable to the applicable service-connected disorder. If feasible, this determination should be expressed in terms of the degree of additional range of motion lost. The examiner should also discuss the degree to which pain could significantly limit functional ability during flare-ups or when the Veteran uses each knee repeatedly over a period of time. 3. Then readjudicate the claims on appeal in light of all of the evidence of record. If the issues remain denied, the Veteran and his representative should be provided with a supplemental statement of the case and afforded a reasonable period of time within which to respond thereto. 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). _________________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).