Citation Nr: 1336561 Decision Date: 11/08/13 Archive Date: 11/22/13 DOCKET NO. 06-05 255 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for irritable bowel syndrome (IBS), to include as secondary to chronic use of non-steroidal anti-inflammatory (NSAID) medication for treatment of multiple service-connected disabilities. 2. Entitlement to an increased rating for disabilities of the thoracic and lumbar spine, to include arthritis and degenerative disc disease, rated as 40 percent disabling since January 15, 2002. REPRESENTATION Appellant represented by: John S. Berry, Attorney WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Rogers, Associate Counsel INTRODUCTION The Veteran served on active duty from June to September 1979 and from November 1980 to June 1993. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from March 2003 and July 2005 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The claims file has since been transferred to the RO in Lincoln, Nebraska. The Veteran testified before the undersigned during a Travel Board hearing in April 2009. He was also afforded personal hearings at the RO in March 2007 and June 2008. A copy of each hearing transcript has been associated with the record. In July 2009, the Veteran submitted corrections to the April 2009 Travel Board hearing transcript which were accepted and made part of the record following a review by the undersigned. 38 C.F.R. § 20.716 (2012). In September 2009, the Board remanded the issues on appeal for further development. In September 2011, the Board, in relevant part, denied the Veteran's claims of entitlement to service connection for IBS and a rating in excess of 40 percent for thoracic and lumbar spine disabilities. The Veteran appealed that decision as to entitlement to service connection for IBS and a rating in excess of 40 percent for thoracic and lumbar spine disabilities to the United States Court of Appeals for Veterans Claims (Court). In January 2013, a Joint Motion for Partial Remand ordered that portion of the Board's September 2011 decision pertaining to service connection for IBS and a rating in excess of 40 percent for thoracic and lumbar spine disabilities be vacated and remanded to the Board for action consistent with the terms of the Joint Motion. The appeal is now before the Board for action consistent with the terms of the joint motion. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The Veteran contends that his service-connected thoracic and lumbar spine disabilities warrant a 60 percent evaluation under the pre September 23, 2002, rating criteria for intervertebral disc syndrome. 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5293 (2001). He also contends that service connection for IBS is warranted as secondary to chronic use of non-steroidal anti-inflammatory medication for treatment of his multiple service-connected joint and headache disabilities. With respect to service connection for IBS, in the January 2013 Joint Motion, the parties agreed that the Board failed to adequately discuss whether the Veteran was entitled to service connection for IBS based on medication taken for his service-connected back condition despite lay and medical evidence of record suggesting a possible relationship between IBS and medication taken for treatment of service-connected disabilities. The claim was vacated and remanded to allow the Board to consider service connection based on that theory in the first instance. The Joint Motion specifically directs the Board to address whether obtainment of a medical opinion is necessary as to whether the Veteran's IBS is etiologically related to any medication prescribed for treatment of his service-connected back condition. The evidence of record shows that the Veteran has multiple service-connected disabilities (thoracic and lumbar spine arthritis and degenerative joint/disc disease, cervical degenerative joint/disc disease with muscle contraction headaches, right hip degenerative changes and bursitis, right shoulder glenohumeral degenerative joint disease, left hip arthritis, bilateral knee retropatellar pain syndrome, and sciatica of the bilateral lower extremities) for which he has reported treatment with use of NSAID and narcotic pain medication and muscle relaxers. Due to lack of effectiveness and side effects of such medication, to include upset stomach and fear of addiction, the Veteran developed a preference against taking medication for chronic pain in the mid 1990s and instead began drinking a 12 pack of beer per day for over a year. On VA examination in February 2004 upper gastrointestinal diagnostic testing showed a mild sliding hiatal hernia with non obstructive Schatzki ring with no evidence of reflux disorder, gastritis, or ulcer. The examiner opined that it was more than likely that the Veteran's heartburn and stomach discomfort were related to overuse of NSAIDs and his hiatal hernia, though most likely the chronic NSAID condition. In May 2004, the RO granted service connection for a mild sliding hiatal hernia with heartburn and stomach discomfort associated with arthritis of the thoracic and lumbar spine and assigned a 10 percent evaluation, effective October 21, 2003, under DC 7399-7346, for a hiatal hernia. In March 2005, the Veteran submitted a claim for service connection for IBS. On VA stomach/duodenum examination in May 2010, the Veteran's complaints included "problems with [his] bowels," such as the frequency, nature and consistency of bowel movements, increased gas production, and flatus. The examiner diagnosed both a hiatal hernia as evidenced by upper GI testing in March 2004 and irritable bowel symptoms. Although the Veteran stated his belief that his claimed IBS disability is related to chronic use of NSAID medication for treatment of his service-connected disabilities, the examiner did not address whether IBS symptoms diagnosed on examination are caused or aggravated by the Veteran's service-connected disabilities, to include use of NSAID medication for treatment of multiple service-connected disabilities. As the favorable February 2004 opinion pertains to an etiological relationship between chronic NSAID medication use and service-connected hiatal hernia with heartburn and stomach discomfort as opposed to symptoms diagnosed as IBS on VA examination in May 2010, the Board finds that a medical opinion is needed for clarification as to whether the Veteran's IBS is caused or aggravated by his service-connected disabilities or medication taken for treatment of the same. With respect to the Veteran's claim for a rating in excess of 40 percent for thoracic and lumbar spine disabilities, the parties agreed that the Board failed to adequately discuss whether the Veteran is entitled to a 60 percent disability rating for his service-connected thoracic and lumbar disabilities based on the pre September 23, 2002, rating criteria under DC 5293 for intervertebral disc syndrome. Specifically, in assigning an effective date for service-connected sciatica of the bilateral lower extremities of January 15, 2002, the date the claim for increase for spinal disabilities was received, the Board conceded that the Veteran had a compensable disability of his lower extremity peripheral nerves, however; in making the statement that there was no evidence of neuropathy or radiculopathy on neurological testing, the Board did not consider whether this was evidence that would also specifically support a 60 percent rating prior to September 23, 2002. The Board also acknowledged medical findings of back pain that occasionally radiated in the right side in November 2001, complaints of left hip numbness in October 2002, slight decreased muscle strength to dorsiflexion of the left foot in July 20003, and complaints of radiating pain and numbness in August 2003, however; the Board did not adequately address whether such symptomatology supports a 60 percent rating under the pre-September 23, 2002, version of DC 5293. Thus, the claim was vacated and remanded for the Board to provide an adequate statement of reasons or bases in support of its decision. Here, it is unclear whether the Veteran's diagnosed intervertebral disc syndrome is pronounced in degree; with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the side of the disease disc, which are not duplicative or overlapping with symptoms diagnosed as sciatica of the bilateral lower extremities. Also, the Veteran's service-connected thoracic and lumbar spine disabilities were most recently evaluated on VA examination dated in August 2008, more than five years ago. Thus, the Veteran must be afforded a new VA examination to determine the current nature and severity of his service-connected thoracic and lumbar spine disabilities and whether such disabilities satisfy the pre-September 23, 2002, rating criteria for the assignment of a 60 percent disability rating, which are not duplicative or overlapping with symptomatology diagnosed as sciatica of the bilateral lower extremities. The Board observes that the Veteran has refused prior VA examination(s) on the basis that the evidence of record, to include prior VA examinations, is sufficient to adjudicate his claims. For the reasons explained above, however, the Board finds that the prior reports of VA examinations are not sufficient for the purpose of adjudicating the Veteran's claims. Thus, it is necessary to obtain additional VA medical opinions and examination(s). As such, the Veteran is hereby notified that it is his responsibility to report for any VA examination(s) requested as a result of this remand and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all VA treatment records from the Omaha and Sioux Falls VAMCs dating since October 2007, to include all pain management, gastrointestinal, orthopedic and neurological treatment records, diagnostic testing, and evaluations. 2. Thereafter, refer the claims file to the May 2010 VA stomach/duodenum examiner or another qualified examiner if she is unavailable for the purpose of clarification as to whether the Veteran's is caused or aggravated by his multiple service-connected joint and headache disabilities, to include treatment of such with NSAID medication. The examiner must be provided access to review the claims file, this remand, and all pertinent records located in Virtual VA. The examiner must state the date range of clinical records located on Virtual VA which he/she considered. If the examiner determines that a new VA examination is necessary, it must be conducted. Following a review of all pertinent evidence, taking in to account both medical evidence and lay testimony from the Veteran as to the progression of the claimed disability, the examiner must provide a written response to the following inquiries: a) is it at least as likely as not (at least 50 percent likely) that the Veteran's IBS is proximately due the his multiple service-connected joint and headache disabilities, to include treatment of such with NSAID medication; b) If not, is it at least as likely as not (at least 50 percent likely) that IBS is aggravated (permanently made worse) by the Veteran's multiple service-connected joint and headache disorders and treatment of such with NSAID medication. If it is determined that IBS is aggravated by service-connected disabilities, to include treatment with NSAID medication, the examiner should report the baseline level of severity of IBS prior to the onset of aggravation. If some of the increase in severity of IBS 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 set forth a complete rationale for his or her conclusions. If he or she is unable to provide one or more of the requested opinions without resort to undue speculation, he or she should explain why this is the case. 3. Schedule the Veteran for appropriate VA examination(s) by an appropriate examiner to determine the nature and severity of his service-connected thoracic and lumbar spine disabilities and any associated neurological manifestations. The claims folder and access to Virtual VA must be made available to the examiner. All indicated tests and studies should be conducted and clinical findings, to include range of motion studies, should be reported in detail. The examiner should indicate whether there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the service-connected back disorder, and to what extent the Veteran experiences functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use. The examiner must also state whether since January 2002, the evidence shows that the Veteran's intervertebral disc syndrome of his thoracic and lumbar spine is more appropriately described as either: a) Pronounced; with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the disease disc, with little intermittent relief; or b) Severe with recurring attacks and intermittent relief. If the examiner finds that the Veteran's spine symptomatology is more appropriately described by option "a", then the examiner must specifically identify all neurological symptomatology appropriate to the site of the disc disease and discuss whether each symptom is separate and apart from or duplicate and overlapping with symptomatology diagnosed as sciatica of the bilateral lower extremities. Any and all opinions must be accompanied by a complete rationale. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 4. After the development requested has been completed, review the examination reports to ensure that they are in complete compliance with the directives of this REMAND. If the examination reports are deficient in any manner, the RO must implement corrective procedures at once. 5. After the development requested above has been completed to the extent possible, and after undertaking any additional development deemed necessary, the RO should again review the record and readjudicate the issues on appeal. If the decision remains unfavorable, provide a supplemental statement of the case to the Veteran and his attorney. An appropriate period of time should be allowed for response. Thereafter, the case must be returned to the Board, if in order. 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). _________________________________________________ DAVID L. WIGHT 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).