Citation Nr: 1343326 Decision Date: 12/30/13 Archive Date: 01/07/14 DOCKET NO. 04-21 265 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for gastroesophageal reflux disease (GERD). 2. Entitlement to service connection for a gastrointestinal (GI) disability other than GERD, to include irritable bowel syndrome (IBS), a duodenal ulcer, peptic ulcer disease, and/or gastritis. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESSES AT HEARING ON APPEAL Appellant, D.W., and J.M., M.D. ATTORNEY FOR THE BOARD M. Zawadzki, Counsel INTRODUCTION The Veteran served on active duty from December 1990 to April 1991, to include service in the Southwest Asia theater of operations during the Persian Gulf War. She has reported additional Reserve service. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2000 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. During the pendency of the appeal, the claims file was transferred to the jurisdiction of the RO in Nashville, Tennessee. The case was previously remanded by the Board in November 2006, December 2009, and February 2012. In a June 2013 rating decision, the RO granted service connection for three of issues remanded in February 2012. Further, while the Veteran had a claim for a higher initial rating for PTSD which was remanded in February 2012 for issuance of a statement of the case (SOC), the Veteran did not file a timely appeal. 38 C.F.R. §§ 20.200, 20.302 (2013). Accordingly, this issue is not in appellate status. The only issue remaining for the Board's consideration at this time is entitlement to service connection for gastrointestinal disorders. The evidence of record in the rebuilt claims file indicates the presence of several gastrointestinal disorders, including GERD, IBS, a duodenal ulcer, and gastritis, since the filing of the December 1995 claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the requirement of the existence of a current disability is satisfied when a Veteran has a disability at the time she files her claim for service connection or during the pendency of the claim, even if the disability resolves prior to adjudication of the claim). In light of the Veteran's assertions and the evidence of record the Board has characterized the issue on appeal as encompassing the two issues listed on the title page. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). The Board has reviewed the contents of the Veteran's Virtual VA file and found that it contains additional medical evidence that was associated with the e-folder subsequent to the issuance of the most recent supplemental statement of the case (SSOC). However, in light of the decision below to grant service connection for GERD, the Board's consideration of this evidence will not result in prejudice to the Veteran. Regarding the claim for service connection for a gastrointestinal disability other than GERD, the Agency of Original Jurisdiction (AOJ) will have the opportunity to consider this evidence on remand. See 38 C.F.R. § 20.1304 (2013). In February 2012, the Board referred several issues to the AOJ for appropriate action; specifically, entitlement to service connection for primary pulmonary hypertension, respiratory difficulty, blurred vision, and Parkinsonism, to include as due to an undiagnosed illness; entitlement to service connection for a thyroidectomy, to include as due to ionizing radiation; a petition to reopen a claim for entitlement to service connection for tuberculosis; entitlement to service connection for visual disturbances, skin rashes, a thyroid tumor, pituitary dysfunction, and metabolic and endocrine disorders, to include as an undiagnosed illness; and entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). A subsequent Report of Contact reflects that the Veteran did not want to claim service connection for a primary pulmonary condition, respiratory difficulty/complaints, blurred vision, Parkinsonism/Parkinson's disease, and metabolic and endocrine disorders. In an October 2013 rating decision, the RO denied service connection for a thyroidectomy and actinic keratosis (claimed as pre-cancerous lesions) and granted a TDIU. However, the request to reopen a claim for service connection for tuberculosis and a claim for service connection for pituitary gland dysfunction have not been addressed. In an April 2011 rating decision, the AMC granted service connection for PTSD, effective May 15, 2007. In an October 2011 rating decision, the AMC granted service connection for chronic fatigue syndrome, right upper extremity paresthesia, and right lower extremity paresthesia, each effective February 11, 2004. In November 2012, the Veteran asserted that her claim for disability was from December 1995 and all claims dated back to that time. She stated that the claims for which she had been paid had only been paid back to 2004 and 2007. She asserted that all her claims should be retroactively paid back to 1995. This statement raises claims for earlier effective dates for the grants of service connection for PTSD, chronic fatigue syndrome, right upper extremity paresthesia, and right lower extremity paresthesia. The request to reopen a claim for service connection for tuberculosis, a claim for service connection for pituitary gland dysfunction, and claims for earlier effective dates for the grants of service connection for PTSD, chronic fatigue syndrome, right upper extremity paresthesia, and right lower extremity paresthesia have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over these matters, and they are referred to the AOJ for appropriate action. The issue of entitlement to service connection for a gastrointestinal disability other than GERD, to include IBS, a duodenal ulcer, peptic ulcer disease and/or gastritis, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's GERD is related to her active duty service. CONCLUSION OF LAW The criteria for the establishment of service connection for GERD are met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran asserts that she has gastrointestinal disorders related to her Persian Gulf War service. The evidence is in approximate balance between that favoring and that against the claim and the appeal will be granted A three-element test must be satisfied in order to establish entitlement to service connection. Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement). Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). The Veteran underwent VA stomach and duodenal conditions examination in December 2012 and the examiner completed her report the following month, The examiner reported that the Veteran had a diagnosis of a duodenal ulcer in 1996, a diagnosis of GERD, hiatal hernia in 2003, and a diagnosis of GERD in January 2013. The Veteran reported that she had been having heartburn since service and a 1996 esophagogastroduodenoscopy (EGD) showed hiatal hernia/duodenal ulcer. An October 2003 EGD revealed a hiatal hernia. A January 2013 endoscopy report revealed a normal EGD, with bile in the stomach and duodenum. In response to the question, "Does the Veteran have any GI disorder that was caused or aggravated by active military service?" the examiner stated, "Per recent EGD done 1/2/13 her current diagnosis is GERD. Normal EGD. It is as likely as not that her GERD has been aggravated since service." The examiner stated that the GI symptoms were attributable to a known diagnosis, as the clinical diagnosis was GERD. She opined that the GI symptoms were not a chronic disability from an undiagnosed illness, as the Veteran had a diagnosed condition of GERD and hiatal hernia less likely to be secondary to Gulf War syndrome. She added that the Veteran's abdominal pain and nausea had been ongoing for over six months and she had a recent emergency room visit in June 2012 for chest pain which she was told was reflux. There is evidence of GERD during the pendency of the appeal, as diagnosed on the recent VA stomach and duodenal conditions examination. VA treatment records dated from March 1998 to September 2013 also reflect findings of and treatment for GERD, esophageal reflux, and hiatal hernia. As the original claims file has been lost in this case, VA has a heightened duty "to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing the claim, and to explain its decision when the veteran's medical records have been destroyed." Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005). As there is a competent, probative medical opinion indicating that the Veteran's GERD was aggravated by her active duty service, the Board is resolving reasonable doubt in favor of the Veteran and granting service connection for GERD. In granting service connection, the Board states no opinion regarding the severity of this disability. The question of severity is one of rating, not of service connection. Ferenc v. Nicholson, 20 Vet. App. 58 (2006) (discussing the distinction in the terms "compensation," "rating," and "service connection" as although related, each having a distinct meaning as specified by Congress). ORDER Service connection for GERD is granted, subject to the laws and regulations governing the award of monetary benefits. REMAND Remand is required to clarify the dates of the Veteran's Reserve service, to make additional attempts to obtain outstanding evidence, to afford the Veteran a VA examination regarding her gastrointestinal disorders other than GERD, and to provide additional notice pursuant to the Veterans Claims Assistance Act (VCAA). Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding the claim for service connection for a GI disability other than GERD, to include IBS, a duodenal ulcer, peptic ulcer disease, and/or gastritis. 2. Undertake appropriate action to attempt to verify all of the Veteran's periods of active duty for training (ACDTURA) and inactive duty for training (INACDUTRA) with the Reserves. 3. Request from the National Personnel Records Center (NPRC), or any other appropriate entity, any available service treatment records, to include records from the Veteran's Reserve service, reported to be from August 1990 to October 2000. If service treatment records are not obtainable (or none exist), the Veteran and her representative should be notified and the record clearly documented. 4. Request from the NPRC, or any other appropriate entity, any available service personnel records, to include records from the Veteran's Reserve service, reported to be from August 1990 to October 2000. If service personnel records are not obtainable (or none exist), the Veteran and her representative should be notified and the record clearly documented. 5. Attempt to obtain any available evidence referenced in the May 2000 rating decision which may be in the possession of VA or another Federal agency that is not currently of record, to include: (1) VA examinations performed at the Augusta VAMC in August 1996, January 1998, and March 1998; (2) treatment records from the Augusta VAMC dated from December 21, 1995 to December 31, 1996; and (3) and treatment records from the Eisenhower Army Medical Center, dated from May 4, 1999 to October 14, 1999. 6. Contact the Atlanta RO, the Nashville RO, the Augusta VAMC, and the Nashville VAMC and ask them to provide any available records (including computerized records), in their possession related to the Veteran's case which are not presently of record in the rebuilt claims file; that is, records dated prior to the claims file being rebuilt in July 2009. These records should include any communications from the Veteran (including claims, NODs, and other statements), copies of any SOC or SSOC, a copy of any hearing transcripts, and any other records related to the case which are not presently in the rebuilt claims file. 7. Request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for a GI disorder. Advise the Veteran that, as her file was rebuilt in July 2009, she should identify all providers, even if records were previously submitted prior to July 2009. After acquiring this information and obtaining any necessary authorization, obtain and associate any outstanding pertinent records with the claims file or Virtual VA e-folder. A specific request should be made for: (1) treatment records from the August VAMC, dated prior to March 1998; (2) treatment records from the Tennessee Valley Healthcare System, dated since September 2013; (3) treatment records from Dr. R.B., as identified on December 1996 and December 2004 pathology reports; (4) any private treatment records scanned into the Veteran's VA treatment records which are not otherwise available for the Board's review in the claims file or Virtual VA e-folder, to include records from University Family Medicine West, Eisenhower Army Medical Center, and Augusta Regional Medical Center, as referenced in a March 2013 VA treatment record; and (5) the report of a December 2004 colonoscopy performed at Doctors Hospital. A request should also be made for private treatment records identified in the May 2000 rating decision: (1) treatment records from Augusta Regional Medical Center dated from September 1993 to November 1995; (2) treatment records from Dr. R.A. dated in October 1995; (3) treatment records from Dr. C.G. dated from July 1986 to June 1994; (4) treatment records from University Hospital dated from July 1986 to April 1997; (5) treatment records from Dr. B.B. dated from September 1995 to January 1996; and (6) treatment records from University Family Medicine dated from July 1996 to March 1997. If any identified records are not obtainable (or none exist), the Veteran and her representative should be notified and the record clearly documented. 8. After all available records have been associated with the claims file and/or Virtual VA e-folder, afford the Veteran a VA examination to determine the etiology of any gastrointestinal disorder other than GERD. The claims folder must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. Following examination of the Veteran and a review of the record, the examiner should identify any gastrointestinal disability other than GERD which has been present at any time since December 1995, when the Veteran filed her claim for service connection, to include, but not limited to IBS, a duodenal ulcer, peptic ulcer disease, and/or gastritis. Regarding each identified disability, the examiner must provide an opinion as to whether the disability began during active service or ACDUTRA, or is related to any incident of service (to include ACDUTRA), or is related to an injury incurred during a period of INACDUTRA. The examiner should specifically address whether any identified condition pre-existed any period of service (including any period of ACDUTRA or INACDUTRA). If so, the examiner should provide an opinion as to whether the pre-existing condition was aggravated (permanently worsened) beyond the natural progression during a period of service (including ACDUTRA and/or INACDUTRA). The examiner must also provide an opinion in regard to each identified condition as to whether it was caused or aggravated by the Veteran's service-connected GERD. The examiner must address whether or not there are any symptoms related to the claimed GI disability other than GERD that cannot be attributed to a known diagnostic entity. If there are any symptoms related to the Veteran's claimed GI disability other and GERD that cannot be attributed to a known diagnostic entity, the examiner should provide an opinion as to whether any such symptoms represent an objective indication of chronic disability resulting from an undiagnosed illness or a medically unexplained chronic multi-symptom illness related to the Veteran's Persian Gulf War service. As indicated above, the examiner should review the record in conjunction with rendering the requested opinion; however, his or her attention is drawn to the following: * A January 1991 treatment record from Eisenhower Army Medical Center reflects that the Veteran complained of heartburn and reported she had a GI bleed. The physician assistant's comment is difficult to decipher, but it appears he was reporting that the Veteran had a long history of peptic ulcer disease (PUD) which was inactive, but, because the Veteran was experiencing symptoms, she was given Tagamet. * An October 1991 private treatment record reports that the Veteran had previously had gastrointestinal bleeding with adhesions requiring gastrointestinal surgery. * In a January 1996 letter, S.L.W., C.R.N.A., reported that the Veteran had numerous conditions, including duodenal ulcers. * An October 1996 VA treatment record reflects that the Veteran presented with one to two episodes of explosive diarrhea a month for the past two to three years which started with crampy abdominal pain, distention, and bloating. She described constipation between these bouts of diarrhea and reported that she was often incontinent of stool. The assessment was IBD (irritable bowel disease) versus infectious etiology. * A November 1996 questionnaire completed for the Comprehensive Clinical Evaluation Program (CCEP) reflects that the Veteran reported current abdominal pain and abdominal pain within three months after her Gulf War service. She also described current diarrhea and diarrhea with an onset during her Gulf War service. * In December 1996, the Veteran was hospitalized for chest pain. The discharge diagnoses included gastroduodenitis with erosion. An EGD performed during that hospitalization revealed moderately severe gastroduodenitis with duodenal erosion, by reflux, and a hiatal hernia. * A December 1996 pathology report from a stomach biopsy obtained during EGD revealed a diagnosis of mild focal acute gastritis. * A January 1997 private treatment record reports that upper endoscopy performed by Dr. B. revealed an esophageal tear and peptic ulcer disease. * A February 1997 Five Year examination performed in conjunction with the Veteran's Reserve service reports that the Veteran had been hospitalized in December 1996 for a duodenal ulcer bleed. The summary of defects and diagnoses included duodenal ulcer/hiatal hernia. * April 1997 private treatment records reflect that the Veteran received treatment for chronic recurrent diarrhea of unknown etiology. One of these records notes that her weight was down eight pounds. * During VA treatment in April 1997, the Veteran described diarrhea for three weeks. She gave a history of a GI bleed/duodenal ulcer and hiatal hernia/GERD. * An April 1997 surgical pathology report reflects that colonoscopic biopsies of the sigmoid colon revealed acute and chronic inflammation. * A May 1997 VA treatment record reflects that an outside diarrhea work up yielded a diagnosis of mastocytosis. The VA physician's diagnosis was diarrhea with systemic mastocytosis. * A November 1997 document from the U.S. Army Reserve Personnel Center indicates that the Veteran did not meet the standards for retention in the U.S. Army Reserve by reason of several conditions, including her duodenal ulcer. * On VA examination in January 1998, the Veteran reported nausea, vomiting, and diarrhea at least once a week and described a 30 pound weight loss with night sweats and fevers. She gave a history of ulcer disease, reporting that she had presented with chest pain in 1996 and was diagnosed with hiatus hernia. The impression included history of dysautonomia or orthostasis which might be related to several factors including hypovolemia with mastocytosis causing episodes of diarrhea, medication, and/or autonomic dysfunction. * In a February 1998 letter, J.H. stated that the Veteran changed after her Gulf War service, including undergoing extreme weight loss. * During a March 1998 Persian Gulf Registry examination, the Veteran described diarrhea in Riyadh in February 1991 and weight loss in August 1996. * In the May 2000 rating decision, the RO stated that outpatient treatment reports from Dr. C.G., dated from July 1986 to June 1994 revealed a diagnosis of IBS with constipation, diarrhea, and abdominal pain status post cholecystectomy in July 1988. However, as of the time of this remand, the July 1988 private treatment record has not been associated with the rebuilt claims file. * An October 2003 EGD demonstrated a hiatal hernia, with no ulcers in the stomach. * An October 2003 VA treatment record reports that the Veteran's medical history included a hiatal hernia with no PUD, last EGD in October 2003, and acute and chronic inflammatory infiltrates on a 1997 sigmoid colon biopsy "Thought to be related to chemical exposure at Persian Gulf." * In October 2004, the Veteran complained of lower abdominal pain and diarrhea for 11 days, with mucus and no blood, as well as mild nausea and a 9 pound weight loss. She reported having a similar episode of diarrhea in the past which was diagnosed as GI mastocytosis, improved with Tagamet (which she had been taking without improvement). The assessment was abdominal pain and diarrhea, possible infectious or inflammatory colitis. Bacteriology revealed no white blood cells and no enteric pathogens were isolated. * A November 2004 VA gastroenterology note indicates that stool studies were negative. * A December 2004 pathology report reflects that biopsy of the ascending colon mucosa revealed focal active colitis; no gland architectural changes were present. Biopsy of the rectum mucosa revealed focal active colitis with focal mucosal hemorrhage and gland architectural changes. The pathologist commented that the changes in both specimens showed focal acute inflammation within the lamina propria and superficial glandular epithelium. The morphologic differential diagnosis included ischemic colitis, acute self-limited/infectious colitis, and less likely chronic inflammatory bowel disease. * During VA treatment in May 2005, the Veteran reported that her diarrhea had resolved and reported that her outside colonoscopy in December 2004 was "completely normal." She stated that she had been told she had functional diarrhea that was going to resolve on its own and it did. The assessment was diarrhea, functional, resolved. * An August 2005 VA gastroenterology note reflects that the Veteran's diarrhea resolved on its own; therefore, the physician opined that this was likely more of a self limiting colitis. * A June 2007 VA treatment record indicates that the Veteran had colon cancer screening two years earlier, with a finding of "ok - diverticulitis." * During VA treatment in July 2009, the Veteran described occasional coffee ground stools, with two episodes in the past year. She stated that, the first time this happened she was hospitalized and told she had a GI bleed. She added that this had occurred over the past 15 years and the episodes were associated with weakness and abdominal pain and lasted for about 24 hours. * On VA general medical examination in November 2010, the Veteran described a duodenal ulcer and hiatal hernia with onset in the 1990s and reported that this condition occurred during active service. The diagnoses included duodenal ulcer and hiatal hernia. * In October 2011, the Veteran reported that she continued to experience bouts of bowel incontinence. * On review of systems during VA treatment in November 2011, the Veteran complained of constipation and heartburn. * The Veteran denied bowel movement problems on review of systems in April 2010, May 2011, May 2012, November 2012, and July 2013. * On VA intestinal conditions examination in December 2012, the examiner reported that the Veteran had alternating diarrhea and constipation, continuous nausea, and occasional vomiting attributable to her non-surgical, non-infectious intestinal condition. She also noted that the Veteran had weight loss attributable to an intestinal condition. The examiner observed that an October 1996 progress note included a diagnosis of IBS/infectious etiology. The examiner found that the Veteran had a diagnosis of IBS in 1996 but did not have a current diagnosis of IBS. * On VA stomach and duodenal conditions examination in December 2012, the examiner reported that the Veteran had a diagnosis of a duodenal ulcer in 1996, a diagnosis of GERD, hiatal hernia in 2003, and a diagnosis of GERD in January 2013. The examiner reported that the Veteran had continuous abdominal pain only partially relieved by standard ulcer therapy, weight loss, recurrent nausea, and mild vomiting due to her stomach or duodenum condition. The examiner noted that a 1997 sigmoid colon biopsy revealed acute and chronic inflammatory infiltrates. The examiner stated that the GI symptoms were attributable to a known diagnosis, as the clinical diagnosis was GERD. She opined that the GI symptoms were not a chronic disability from an undiagnosed illness, as the Veteran had a diagnosed condition of GERD and hiatal hernia less likely to be secondary to Gulf War syndrome. The examiner commented that the Veteran did have a diagnosis of IBS in 1996, but there was no currently diagnosed IBS. She added that the Veteran's abdominal pain and nausea had been going on for over six months and she had a recent emergency room visit in June 2012 for chest pain which she was told was reflux. The examiner noted that the Veteran reported that she had ulcerative colitis, but this was not found in the claims file. * A January 2013 EGD revealed bile in the stomach and duodenum. The assessment was normal EGD. * A January 2013 colonoscopy discharge plan indicates that endoscopy was normal. * The Veteran was seen for follow-up for nausea and epigastric pain later in January 2013. She described episodes of epigastric pain and nausea lasting for approximately two months in duration, with symptoms occurring since her deployment. She reported a change in her cholesterol medication prior to the most recent onset of symptoms. She added that her pain and nausea had subsided, she had gained a few pounds, and her appetite had improved. The impression was epigastric pain. In rendering the requested opinion, the examiner must consider the references to IBS, a duodenal ulcer, peptic ulcer disease, and gastritis since December 1995, as indicated above. All examination findings, along with a complete explanation for all opinions expressed, should be set forth in the examination report. 9. Conduct any other appropriate development deemed necessary. Thereafter, readjudicate the claim, considering all evidence of record. If the benefit sought remains denied the Veteran and her representative should be provided an SSOC. An appropriate period of time should be allowed for a response. If the benefit sought is granted, ensure compliance with 38 C.F.R. § 4.114 in assigning the appropriate disability rating (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). The appellant has the right to submit additional evidence and argument on the matter that the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). ORDER ON NEXT PAGE 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. 2013). ______________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs