Citation Nr: 1339187 Decision Date: 11/27/13 Archive Date: 12/13/13 DOCKET NO. 10-31 991A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of service connection for a left ankle disorder. 2. Entitlement to service connection for a osteopenic bone density disorder, to include as secondary to the service-connected posttraumatic stress disorder (PTSD), irritable bowel syndrome (IBS) and gastroesophageal reflux disease (GERD). 3. Entitlement to service connection for a spine disorder, to include as secondary to the service-connected PTSD, IBS and GERD. 4. Entitlement to an initial rating in excess of 10 percent for the service-connected IBS and GERD. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran had active military service from May 1966 to May 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June and September 2009 rating decisions issued by the RO. The Board notes that the RO previously denied the Veteran original claim of service connection for a left ankle disorder in a June 2005 rating decision. The Veteran did not perfect a timely appeal of this decision and it became final. 38 C.F.R. §§ 20.200, 20.302, 20.1103 Regardless of the actions of the RO, "the Board does not have jurisdiction to consider a claim which it previously adjudicated unless new and material evidence is presented, and before the Board may reopen such a claim, it must so find." Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); 38 U.S.C.A. §§ 5108, 7104(b). The appeal is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND Regarding the issue of whether new and material evidence has been received to reopen the claim of service connection for a left ankle disorder, the Board notes that generally, a claim that has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. However, in instances where VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, the must be considered on a de novo basis without the restrictions imposed on claims previously considered and denied to which finality attaches. 38 C.F.R. § 3.156(c). The Veteran has consistently asserted that he injured his left ankle in service in January 1968 and received treatment at the Naval Hospital at Subic Bay, Philippines. Additionally, he has submitted statements from fellow service members that would seem to confirm his assertions. It is unclear whether the Veteran was hospitalized at the Naval Hospital at Subic Bay, or was treated as an outpatient. Further, it is noted that sometime hospitalization records are stored separately from service medical records. It should be determined whether he was hospitalized at Subic Bay. If so, the RO should attempt to obtain any clinical records regarding treatment of the Veteran in January 1968 at the Naval Hospital that was located at Subic Bay, Philippines. Regarding the issues of service connection for an osteopenic bone density disorder and a spine disorder, to include as secondary to the service-connected PTSD and IBS and GERD, the Board initially notes that 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. 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). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. The Veteran asserts that the medication he takes for control of his PTSD and/or IBS and GERD has caused or aggravated his osteopenia. A June 2007 VA treatment record indicates that osteopenia was documented on "DEXA scan." It was noted that an updated DEXA scan needed to be performed in the next year to see if the Veteran had any improvement. The etiology of the osteopenia was not known. The February 2008 and May 2009 VA treatment records reflect an impression of "osteopenia, doubt this is clinically significant." The September 2010 report of VA examination reflects, in pertinent part, that "[t]here is a report that he had a bone study showing osteopenia in 2007, but he has never had a formal test since that time, and has never been diagnosed with osteoporosis or other clinically significant bone abnormalities." Also noted was that the Veteran was prescribed omeprazole for his digestive disabilities. The examiner explained that vitamin d deficiency and smoking are both risk factors for osteoporosis in men with some articles discussing reduction of calcium carbonate absorption in postmenopausal women taking omeprazole; however, dietary calcium was not reduced in healthy individuals treated with omeprazole. The examiner concluded that "[he could not] find significant evidence that the Veteran's current spinal condition or bone condition [were] caused by his use of omeprazole. However, his quitting smoking and taking vitamin D and calcium [would] help preserve his bones and help to prevent identified bone metabolic problems or sequelae. A subsequent September 2010 addendum to the report of VA examination reflects that the "Veteran ha[d] been taking vitamin D supplementation for his vitamin D deficiency, which [was] a potential cause for osteopenia and osteoporosis. Smoking [was] also a risk factor for osteopenia and osteoporosis. No significant change in my diagnosis or assessment." An October 2010 addendum to the report of VA examination reflects, in pertinent part, that the "Veteran ha[d] medical history of low vitamin D and smoking. [The examiner] was unable to find evidence of osteoporosis or metabolic bone disease. No radiologic or diagnostic findings of osteopenia were located." In this case, the Board finds that the record is unclear as to whether the Veteran has, or at any time pertinent to this appeal, had a disorder manifested by osteopenia or another bone density disorder that was proximately due to or aggravated by medications taken for control of his service-connected IBS and GERD and/or PTSD. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim). Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Under the circumstances, the Board finds that additional opinion is necessary to clarify this issue. Regarding the Veteran's claim of service connection for a spine disorder, the Board notes that he also asserts that the medication he takes for control of the service-connected PTSD and/or IBS and GERD has caused or aggravated his spine disorder. However, the Board also notes that an April 1966 report of medical history service treatment reflects that the Veteran had acute back sprain in August 1964 while diving 50 feet with recurrent pain until hospitalized for traction for a day in 1965. A May 1966 service treatment record reflects that the family physician diagnosed lumbar sacral strain and moderate lordosis. The record indicated that the Veteran was qualified for active duty, but it was recommended that he Veteran undergo orthopedic evaluation. The June 1966 report of medical history documents the physician's summary that the Veteran had a moderate lordosis, occasionally symptomatic with shortening of left leg. However, on the associated June 1966 active duty induction examination, clinical evaluation of the spine was normal. The post-service treatment records document the Veteran's complaints of neck and back pain. The September 2010 report of VA examination reflects, in pertinent part, a diagnosis of degenerative disc disease and degenerative joint disease of the neck and back. It was noted that the Veteran had chronic spinal pain since he was a teenager and before he went into the military. The X-ray reports showed moderate to severe degenerative change of the mid and lower cervical spine; mild, old-appearing compression of T7 and T8 vertebral bodies; and degenerative change of L4-5 and L5-S1. An October 2010 addendum to the report of VA examination reflects, in pertinent part, that "[the examiner] was unable to find evidence of spinal condition or spinal fracture secondary to metabolic bone disease, the use of omeprazole or direct result of military service. It would be speculation for me to attribute his degenerative arthritis or degenerative disc condition to the use of omeprazole or as the direct result of military service." The Board notes that a veteran will be considered to have been in sound condition when examined, accepted, and enrolled for active service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). A pre-existing injury or disease will be considered to have been aggravated by active military, naval or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying disability, as contrasted to the symptoms of that disability, has worsened. See Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Clear and unmistakable evidence (obvious and manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). To rebut the presumption of sound condition where a condition is not noted at service entry, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-03 (July 16, 2003). The clear and unmistakable evidence standard requires that the result be undebatable. Cotant v. West, 17 Vet. App. 116, 131 (2003). In considering the effect of section 1111 on claims for service-connected disability, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has stated that the government may show a lack of aggravation by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. Wagner v. Principi, 370 F.3d 1089, 1094-96 (Fed. Cir. 2004) (citing 38 U.S.C.A. § 1153). In this case, there is some indication that the Veteran had some sort of disability of the spine that preexisted his entry into service, but was not noted on his entrance examination. Thus, relevant questions that must be addressed are (a) whether there was clear and unmistakable evidence that the Veteran had a spine disorder that existed prior to service; and, (b) whether such spine disorder clearly and unmistakably was not aggravated (i.e., worsened during service beyond the normal progression of the disorder) by service. As to the Veteran's contention that his spine disorder was due to or aggravated by medications he took to control his service-connected IBS and GERD and PTSD, the Board notes that a clarifying opinion must be obtained as to whether the use of the medications aggravated the spinal disorder. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Given the inadequacy of the VA examination as noted above, the Board finds that additional opinion is necessary to clarify these issues. Finally, as to the claim for an increased rating in excess of 10 percent for the service-connected IBS and GERD, the Board initially notes that there are diseases of the digestive system, particularly within the abdomen, which, while differing in the site of pathology, produce a common disability picture characterized in the main by varying degrees of abdominal distress, or pain, anemia and disturbances in nutrition. Thus, certain coexisting diseases of the digestive system do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding as outlined in § 4.14. 38 C.F.R. § 4.113. Ratings under diagnostic codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 inclusive will not be combined with each other. A single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114. In any event, the Veteran's lay assertions suggest a worsening of symptoms related to his IBS and GERD. He was last afforded a VA examination specifically addressing his IBS and GERD in May 2009. VA's General Counsel has indicated that, when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Therefore, the Board finds that a more current VA examination is necessary for the purpose of ascertaining the current severity and manifestations of the Veteran's service-connected IBS and GERD. Accordingly, the case is REMANDED for the following action: 1. The RO should take all indicated action in order to clarify whether the Veteran was hospitalized at the Naval Hospital at Subic Bay, or was treated as an outpatient. Regardless of the claimant's response, VA then should attempt to obtain any clinical records, including directly contacting the service department, regarding treatment of the Veteran in January1968 at the Naval Hospital that was located at Subic Bay, Philippines. To the extent records are not obtained, the claims file should contain documentation of the attempts made and the Veteran and his representative should be notified as needed. 2. The RO should take all indicated action to forward the Veteran's claims file to the VA examiner who conducted the VA examination in September 2010 or a suitable substitute in order to obtain a clarifying opinion. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the physician for review. Based on a review of the entire record, and the examination findings as documented in the September 2010 VA report, the examiner should opine as to whether the Veteran had osteopenia at any time during the course of the appeal. Additionally, the examiner should offer an opinion as to whether it is at least as likely as not the medications taken to control the service-connected IBS and GERD and PTSD caused or aggravated the claimed osteopenia? If aggravation of the osteopenia by the medications taken to control the service-connected IBS and GERD and PTSD is shown, the examiner should objectively quantify the degree of aggravation above and beyond the level of impairment had no aggravation occurred. The opinion should be provided based on the results of the September 2010 examination, a review of the medical evidence of record, and sound medical principles. All findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. If further examination is necessary to provide the requested opinion, such examination must be provided. 3. The RO should take all indicated action to forward the Veteran's claims file to the VA examiner who conducted the VA examination in September 2010 or a suitable substitute in order to obtain a clarifying opinion. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the physician for review. Based on a review of the entire record, and the examination findings as documented in the September 2010 VA report, the examiner should provide opinions as to the following: a) Does the evidence of record show that a disorder of the spine existed prior to the Veteran's entrance onto active duty in May 1966? If so, what evidence supports that conclusion? b) If the examiner concludes that a spine disorder existed prior to the Veteran's entrance onto active duty, what evidence is there that the spine disorder did not undergo an increase in the underlying pathology during or as a result of his period of active service? c) If the physician is of the opinion that the spine disorder did not preexist the Veteran's service, is it at least as likely as not, i.e., is there a 50/50 chance that any current spine disorder had its onset during his period of active service? d) Is lumbosacral strain and lordosis a characteristic manifestation of degenerative arthritis of the spine? e) Is it is at least as likely as not the medications taken to control the service-connected IBS and GERD and PTSD caused or aggravated the Veteran's spine disorder? If aggravation of the spine disorder by the medications taken to control the service-connected IBS and GERD and PTSD is shown, the examiner should objectively quantify the degree of aggravation above and beyond the level of impairment had no aggravation occurred. The opinion should be provided based on the results of the September 2010 examination, a review of the medical evidence of record, and sound medical principles. All findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. If further examination is necessary to provide the requested opinion, such examination must be provided. 4. The RO then should have the Veteran scheduled for a VA examination to determine the severity of the service-connected IBS and GERD. The claims folder must be made available to and reviewed by the examiner. All indicated tests and studies are to be performed. The examiner should address all manifestations of the IBS and GERD, to include whether and to what extent the Veteran experiences bowel disturbance, abdominal distress, diarrhea, constipation, dysphagia, pyrosis, regurgitation, vomiting material weight loss, hematemesis or melena or anemia. All opinions and conclusions expressed by the examiner must be supported by a complete rationale. 5. After completing all indicated development, the claims remaining on appeal should be readjudicated in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran 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). _________________________________________________ STEPHEN L. WILKINS 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) (2013).