Citation Nr: 1446642 Decision Date: 10/21/14 Archive Date: 10/30/14 DOCKET NO. 90-43 344 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for a psychiatric disorder, to include depression and posttraumatic stress disorder (PTSD), to include as secondary to service-connected gastritis and duodenitis with hiatal hernia. 2. Entitlement to service connection for depression, to include as secondary to service-connected disability. 3. Entitlement to service connection for a psychiatric disorder other than depression, to include PTSD, to include as secondary to service-connected disability. 4. Entitlement to service connection for a gastrointestinal disorder other than gastritis and duodenitis with hiatal hernia, to include intestinal motility disorder/irritable bowel syndrome (IBS), diverticulosis, and sigmoiditis, claimed as secondary to service-connected gastritis and duodenitis with hiatal hernia. 5. Entitlement to service connection for chronic headaches, to include as secondary to service-connected disability. 6. Entitlement to service connection for bruxism, to include as secondary to service-connected disability. 7. Entitlement to service connection for a left ring finger disorder, also claimed as arthritic pain, to include as secondary to service-connected disability. 8. Entitlement to service connection for a skin rash, to include as secondary to service-connected disability. 9. Entitlement to service connection for tinnitus, to include as secondary to service-connected disability. 10. Entitlement to service connection for muscle cramps, to include as secondary to service-connected disability. 11. Entitlement to an evaluation higher than 30 percent for service-connected gastritis and duodenitis with hiatal hernia. 12. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). ATTORNEY FOR THE BOARD M. Zawadzki, Counsel INTRODUCTION The Veteran served on active duty from January 1966 to December 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from December 1989, October 1999, and April 2000 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. This case has a long procedural history, which will be outlined below. In September 1989, the Veteran filed his current claim for an increased rating for gastritis with duodenitis. In a December 1989 confirmed rating decision, the RO continued the 10 percent rating for this disability. The Veteran perfected an appeal. The issue of entitlement to a rating in excess of 10 percent was remanded in December 1990, July 1991, December 1992, and June 1994. In a November 1994 rating decision, the RO granted a 30 percent rating, effective September 9, 1994. In June 1995, the Board denied an effective date prior to September 9, 1994 for the assignment of a 30 percent rating for chronic gastritis with duodenitis and denied entitlement to a rating in excess of 30 percent for that disability. The Veteran appealed the June 1995 Board decision to the United States Court of Appeals for Veterans Claims (Court). In an October 1996 Order, the Court granted a Joint Motion by the parties to vacate and remand the June 1995 decision. The Board remanded the case in June 1997. In a March 1999 rating decision, the RO granted an effective date of September 11, 1989 for the 30 percent rating for chronic gastritis with duodenitis. In the October 1999 rating decision, the RO denied a TDIU. In the April 2000 rating decision, the RO denied service connection for intestinal motility disorder/IBS and reactive depression (also claimed as social/industrial inadaptability), as secondary to the service-connected chronic gastritis and duodenitis. In March 2001, the Board again remanded the claim for an increased rating for chronic gastritis and duodenitis, and remanded the claim for a TDIU. The Board also remanded the issues of entitlement to service connection for an intestinal motility disorder/IBS and reactive depression as secondary to the service-connected gastritis and duodenitis for issuance of a statement of the case (SOC). The Veteran subsequently perfected an appeal of these issues. In a February 2004 rating decision, the RO granted service connection for a hiatal hernia, and included this in the evaluation of the Veteran's service-connected gastritis with duodenitis. In a July 2007 decision, the Board denied an evaluation in excess of 30 percent for service-connected gastritis and duodenitis; service connection for depression, claimed as secondary to service-connected gastritis and duodenitis; service connection for an intestinal motility disorder/IBS, claimed as secondary to service-connected gastritis and duodenitis; and a TDIU. In March 2009, the Board vacated the July 2007 decision. In May 2009, the Board requested VHA medical opinions. After the opinions were obtained, the Board remanded the case in November 2009. In June 2011, the Board denied service connection for depression and an intestinal motility disorder/IBS, claimed as secondary to service-connected gastritis and duodenitis with hiatal hernia, denied an evaluation higher than 30 percent for service-connected gastritis and duodenitis with hiatal hernia, and denied a TDIU. The Veteran appealed the June 2011 Board decision to the Court. In a March 2012 Order, the Court granted a Joint Motion by the parties to vacate and remand the June 2011 decision. The parties stated that the Board had failed to ensure that adequate steps were undertaken to develop the Veteran's claims, including review of medical literature evidence by the Agency of Original Jurisdiction (AOJ) in the absence of a waiver of consideration; the Board did not provide an adequate statement of reasons or bases because it did not consider or discuss this medical literature evidence; and because the Board did not ensure that VA had provided an adequate medical examination on the gastrointestinal claims and the claim for a TDIU. In October 2012, the Board again remanded the case. In June 2013, the Veteran filed a motion for recusal of the undersigned Veterans Law Judge, which the undersigned denied later that month. In January 2014, the case was remanded to allow the AOJ to consider additional evidence which had been submitted without a waiver of RO consideration. In March 2014, the Vice Chairman of the Board denied the Veteran's motion to recuse or disqualify the undersigned Veterans Law Judge. The Veteran filed another motion for recusal of the undersigned in May 2014. The Vice Chairman responded in July 2014 that a ruling on the motion for the recusal or disqualification of the undersigned Veterans Law Judge had been issued in March 2014. In July 2014, the Veteran filed a motion for reconsideration of the Vice Chairman's March 2014 decision. In July 2014, a Deputy Vice Chairman of the Board dismissed the motion for reconsideration of the March 2014 ruling on the motion to recuse or disqualify the undersigned Veterans Law Judge. The Deputy Vice Chairman advised the Veteran that the motion failed to meet the requirements for a motion of reconsideration because there was no final decision for the Board to reconsider as the denial of the motion to recuse or disqualify the undersigned was not a final decision on the merits of the case. In July 2014, the Veteran also filed a motion to recall the January 2014 remand and instead issue a referral. However, the Board notes that the January 2014 remand was not a final decision on the merits and, therefore, neither vacatur nor reconsideration is warranted. See 38 C.F.R. §§ 20.904, 20.1000. The Veteran has continued to submit correspondence requesting revocation of the March 2014 denial of the motion to recuse or disqualify the undersigned, and has continued to assert that he should be recused or disqualified. However, as discussed above, both of these assertions have been addressed by the Board (via the March 2014 ruling of the Vice Chairman and the July 2014 dismissal of the motion for reconsideration). As such, they will not be further addressed. In February 2007, the Veteran filed a claim for service connection for diverticulosis and sigmoiditis, asserting that these conditions were part of his pending claim. He submitted a November 2004 colonoscopy report showing diagnoses of diverticulosis and sigmoiditis. 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. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Accordingly, the claim for service connection for a gastrointestinal disorder other than gastritis and duodenitis with hiatal hernia has been characterized as reflected on the title page. Regarding the claim for service connection for a psychiatric disorder, the Board has previously characterized this as a claim for service connection for depression, claimed as secondary to service-connected gastritis and duodenitis with hiatal hernia, as reflected, most recently, in the January 2014 remand. However, the undersigned's present review of the record reflects that the Veteran previously filed a claim for service connection for psychoneurotic disorders, listed as post-traumatic stress, anxiety, depression, and others similar psychiatric disorders in May 1985, which was denied in a July 1985 rating decision. In a November 1985 decision, the Board denied service connection for a psychoneurotic disorder, to include PTSD. While the RO addressed the claim for service connection for depression on the merits during the pendency of the present appeal arising from the April 2000 rating decision, regardless of the RO's actions, the Board has a legal duty under 38 U.S.C.A. §§ 5108, 7104 (West 2002) to address the question of whether new and material evidence has been received to reopen the claim for service connection. That matter goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim on a de novo basis. See Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 1996). As the Board must first decide whether new and material evidence to reopen the claim has been received, this issue has been characterized as reflected on the title page. In December 2012, the Veteran filed a claim for service connection for PTSD, which was denied in a May 2013 provisional rating decision. This issue was not addressed in the final rating decision issued in April 2014 (rather, the rating codesheet notes "Veteran did not file claim for PTSD."). Regardless, the claim as to PTSD is included in the claim for service connection for a psychiatric disorder presently on appeal. See Clemons, supra. The Board presently grants service connection for a gastrointestinal disorder other than gastritis and duodenitis with hiatal hernia. The evidence of record supports a grant of service connection for depression, as secondary to a gastrointestinal disorder other than gastritis and duodenitis with hiatal hernia. While the Board is granting service connection for depression, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has recognized that separately diagnosed psychiatric conditions could be service-connected and separately rated if there was evidence reflecting that the two conditions resulted in different manifestations without regard to the later questions of appropriate disability ratings if the benefit is granted. Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009). Therefore, the claim for service connection for PTSD remains on appeal. In the November 1985 decision, the Board also denied service connection for ulcers and a psychophysiologic gastrointestinal disorder. In filing his current claim, the Veteran indicated that he was seeking service connection for an intestinal motility disorder/IBS. In Boggs v. Peake, 520 F. 3d 1330 (Fed. Cir. 2008) the Federal Circuit held that a claim for one diagnosed disease or injury cannot be prejudiced by a prior claim for a different diagnosed disease or injury. Rather, the two claims must be considered independently. See Ephraim v. Brown, 82 F. 3d 399 (Fed. Cir. 1996). In this case, the Veteran had not been diagnosed with an intestinal motility disorder/IBS at the time of the November 1985 Board decision. Accordingly, new and material evidence is not required to reopen this claim. In addition to denying service connection for PTSD, in the May 2013 provisional rating decision, the RO denied service connection for a left ring finger disorder, tinnitus, a skin rash, chronic headaches, and bruxism. This rating decision was based on the evidence in VA's possession at that time. The Veteran was asked to submit any additional relevant evidence pertaining to the issues decided within one year. The Veteran was instructed that, if he wanted to receive a final decision with appeal rights before the one-year provisional period ended, he should send a statement to VA indicating that "[a]ll necessary evidence was considered by VA. I request that this provisional decision be made final." In June 2013, the Veteran filed a notice of disagreement (NOD) with the May 2013 decision; however, that was a provisional decision. A final rating decision was issued in April 2014. The April 2014 decision denied service connection for chronic headaches, bruxism, a skin rash, tinnitus, muscle cramps, and a left ring finger disorder, also claimed as arthritic pain. In May 2014, the Veteran, via his spouse, filed an NOD with this rating decision. Accordingly, these issues are being remanded, below, for issuance of an SOC. The Veteran's spouse has indicated that additional pertinent evidence was submitted to the RO in July 2014 and that referral of the case to the AOJ, pursuant to 38 C.F.R. §§ 19.31, 19.37 is warranted. The evidence submitted in July 2014 is not presently of record; however, the Board is reopening the claim for service connection for a psychiatric disorder and is granting service connection for depression and a gastrointestinal disorder other than gastritis and duodenitis with hiatal hernia. The Veteran is therefore not prejudiced by the Board's issuance of a decision regarding these matters at this time. The remaining issues listed on the title page are being remanded for further development, including obtaining additional copies of the evidence reportedly submitted in July 2014. Therefore, on remand, the AOJ will have the opportunity to consider this evidence. In addition to the claims file, the Board has reviewed the Virtual VA and Veterans Benefits Management System (VBMS) e-folders. The Virtual VA e-folder includes additional evidence which is not of record in the paper claims file; however, as discussed, the Board is granting the request to reopen the claim for service connection for a psychiatric disorder and is granting service connection for depression and a gastrointestinal disorder other than gastritis and duodenitis with hiatal hernia. The AOJ will have the opportunity to consider all evidence of record, including that contained in the e-folders, in readjudicating the claims remaining on appeal. The VBMS e-folder does not contain any additional pertinent evidence. In January 2012, the Veteran filed a claim for service connection for blurred vision, hearing loss, hemorrhoids, residual pain with limitation of motion of the right wrist, insomnia or a sleep disorder, and prostatism, to include as secondary to the service-connected disorder of the digestive system, and a claim for compensation for post-endoscopy complications (to include chronic sore throat, difficulty swallowing, epigastric/chest pain, vomiting, and reactive phobia/anxiety) in connection with an endoscopy procedure performed at the VA Medical Center (VAMC) gastrointestinal lab in July 1987. In March 2012, the Veteran filed a claim for service connection for chronic pain syndrome. The issues of entitlement to service connection for blurred vision, hearing loss, hemorrhoids, residual pain with limitation of motion of the right wrist, insomnia or a sleep disorder, prostatism, and chronic pain syndrome, to include as secondary to the service-connected disorder of the digestive system, and a claim for compensation for post-endoscopy complications (to include chronic sore throat, difficulty swallowing, epigastric/chest pain, vomiting, and reactive phobia/anxiety) in connection with an endoscopy procedure performed at the VAMC gastrointestinal lab in July 1987 have been raised by the record, but have not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over these matters, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2013). In November 1999, the Veteran's spouse requested information regarding VA vocational rehabilitation. An annotation to this request indicates that the Veteran was furnished a VA Form 28-1900, Disabled Veterans Application for Vocational Rehabilitation. March 2000 letters from the RO indicate that the Veteran had filed a claim for Chapter 31 (vocational rehabilitation and education) benefits. However, the record presently before the Board does not include a decision regarding this claim. The Board is requesting that any VA vocational rehabilitation file/folder in existence be obtained on remand. If such file/folder does not reflect that the claim for Chapter 31 benefits has been adjudicated, this matter is also referred to the AOJ for appropriate action. The issues of entitlement to service connection for a psychiatric disorder other than depression, to include PTSD; an evaluation higher than 30 percent for service-connected gastritis and duodenitis with hiatal hernia; and a TDIU; as well as the claims for service connection for chronic headaches, bruxism, a left ring finger disorder, a skin rash, tinnitus, and muscle cramps, to include as secondary to service-connected disability, are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. In a November 1985 decision, the Board denied service connection for a psychoneurotic disorder, to include PTSD. 2. Evidence associated with the claims file since the November 1985 Board decision is so significant that it must be considered in order to fairly decide the merits of the claim for service connection for a psychiatric disorder. 3. The evidence is at least evenly balanced regarding whether the Veteran has a gastrointestinal disorder other than gastritis and duodenitis with hiatal hernia, to include IBS, diverticulosis, and sigmoiditis, that is related to service. 4. There is competent, probative evidence relating the Veteran's depression to his now service-connected gastrointestinal disorder other than gastritis and duodenitis with hiatal hernia, to include IBS, diverticulosis, and sigmoiditis. CONCLUSIONS OF LAW 1. The November 1985 Board decision, denying service connection for a psychoneurotic disorder, to include PTSD, is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2013). 2. As pertinent evidence received since the November 1985 Board decision is new and material, the criteria for reopening the claim for service connection for a psychoneurotic disorder, to include PTSD, are met. 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. § 3.156 (as in effect prior to August 29, 2001). 3. Service connection for a gastrointestinal disorder other than gastritis and duodenitis with hiatal hernia, to include IBS, diverticulosis, and sigmoiditis, is warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2013); 38 C.F.R. § 3.102, 3.303 (2013). 4. Service connection for depression, as secondary to a gastrointestinal disorder other than gastritis and duodenitis with hiatal hernia, to include IBS, is warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In light of the fully favorable determination regarding the issues decided below, no discussion of compliance with VA's duty to notify and assist is necessary. Analysis The Board applies statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet.App."). 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). For secondary service connection to be granted, generally there must be (1) medical evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (2013); see Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). New and Material Evidence VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013). See also Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). The governing regulation, 38 C.F.R. § 3.156(a), for determining whether there is new and material evidence to reopen a claim was amended pursuant to the Veterans Claims Assistance Act (VCAA) in August 2001, but the amendment was explicitly made only prospectively applicable to applications to reopen finally disallowed claims received by VA on or after August 29, 2001. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (codified as amended at 38 C.F.R. §§ 3.156(a) (2003)). The Veteran filed a claim for service connection for depression in November 1998. Thus, as his claim was received prior to August 29, 2001, the former version of § 3.156(a) applies. The former version of 38 C.F.R. § 3.156(a) provides that new and material evidence is evidence not previously submitted to agency decision makers that bears directly and substantially upon the specific matter under consideration; which is neither cumulative nor redundant; and which, by itself or in connection with evidence previously assembled, is so significant that it must be considered in order to fairly decide the merits of the claim. The Veteran was denied service connection for a psychoneurotic disorder including PTSD, anxiety, and depression, in a July 1985 rating decision. In a November 1985 decision, the Board denied the claim for service connection for a psychoneurotic disorder, to include PTSD. The Board indicated that no evidence was found of a psychiatric disorder during the Veteran's service or at the time of his separation examination and, while he had recently been diagnosed with an adjustment disorder with mixed emotional features and a personality disorder, since that condition was not present in service and was not shown to be due to or the result of the service-connected gastritis, there was no basis upon which to grant service connection. The Board also found that there was no clinical evidence to confirm the presence of PTSD in service or at any time after separation. The November 1985 Board decision is final as to the evidence then of record. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. In November 1998, the Veteran asserted that his gastrointestinal disorder had caused him to have a major depressive state. The evidence added to the record since the November 1985 Board decision includes medical opinion regarding the relationship between the Veteran's depression and his gastrointestinal disorders. For example, in January 2010, Dr. J.W.B. opined that the Veteran's depression was etiologically related to his gastrointestinal maladies, on a secondary basis. He opined that all of the diagnosed conditions (including depression) were service-connected, either directly and/or secondarily. The evidence added to the record since the November 1985 Board decision also includes recent VA treatment records which reflect diagnoses of PTSD. The evidence added to the record since the November 1985 Board decision is new, in that it was not of record at that time. Moreover, because this evidence shows that the Veteran has been diagnosed with PTSD and includes medical opinion evidence that his depression is service-connected, it is so significant that it must be considered in order to fairly decide the merits of the claim. Accordingly, the claim is reopened. Service Connection - Gastrointestinal Disorder The evidence is at least evenly balanced regarding whether the Veteran has a gastrointestinal disorder other than gastritis and duodenitis with hiatal hernia, to include IBS, diverticulosis, and sigmoiditis, that is related to service and, therefore, service connection is granted. The claim for service connection for an intestinal motility disorder/IBS was remanded in October 2012, in part, to afford the Veteran a VA gastrointestinal examination. The record reflects that the Veteran failed to report for VA examinations in January and April 2013 and February and May 2014. Pursuant to 38 C.F.R. § 3.655, when a Veteran fails to report for a VA examination or re-examination that is scheduled in conjunction with an original claim, and he fails to provide good cause for this failure to report, the claim shall be rated based on the evidence of record. See 38 C.F.R. § 3.655(b). The Veteran has reported, via his spouse, that he did not receive notice of a VA examination scheduled in February 2014. Regardless, resolving all reasonable doubt in favor of the Veteran, the Board finds that the evidence of record is sufficient to grant service connection. Regarding the first element of the successful service connection claim, the Veteran has been diagnosed with IBS during the pendency of the appeal, as reflected in an April 2005 record from Dr. M.A.M. and recent VA treatment records. He has also been diagnosed with diverticulosis and sigmoiditis during the pendency of the appeal, as reflected in a November 2004 colonoscopy report. Regarding the second element of the claim, service treatment records document that, in March 1968, the Veteran complained of pain in the "pit of his stomach" which was worse when his stomach was empty. In his November 1968 Report of Medical History at separation, the Veteran reported that he had had stomach, liver, or intestinal trouble. Examination of the abdomen and viscera was normal. In a January 2012 statement, the Veteran reported that he began having episodes of alternating diarrhea and constipation during service, but stated that he felt too embarrassed to tell anyone and, since he was still able to do his work, did not feel the need to seek medical help. The Veteran is competent to report symptoms which are capable of lay observation, such as diarrhea and constipation. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). His report regarding symptoms in service is found to be credible. Post service medical records include a June 1969 VA examination during which the Veteran reported epigastric pain and occasional vomiting. Gastrointestinal series was negative. The Veteran was described as currently asymptomatic. The diagnosis was no gastrointestinal disease found. The Veteran's bowels were normal during VA treatment in December 1971. During an April 1977 VA examination, he reported severe stomach pain recurring twice a month, before or after meal, with occasional vomiting, lasting one to two days. Examination revealed occasional vomiting but no hematemesis, melena, history of jaundice, or diarrhea, just epigastric distress. The diagnosis was chronic gastritis from history only, small sliding hiatal hernia, slight gastroesophageal reflux. During VA treatment in September 1984, the Veteran complained of chronic stomach pain for years. In December 1984, the Veteran was evaluated for epigastric pain and nausea. The diagnosis was chronic gastritis, rule out ulcer, hyperacidity. During a January 1987 VA examination, the Veteran reported recurrent episodes of severe abdominal pain with nausea and periodic vomiting. He also described chronic constipation with black stools and associated pain in the lower part of the abdomen with interruptions of diarrhea. During VA treatment in April 1987, he complained of occasional loose stools followed by constipation. During a May 1987 VA examination, the Veteran complained of recurrent episodes of abdominal pain with nausea and periodic vomiting, chronic constipation with interruptions of diarrhea, and intermittent sharp pain in the lower part of the intestines. The diagnosis was gastritis and duodenitis and hiatal hernia. The diagnosis on VA examination in June 1987 was gastritis by history, hiatal hernia with reflux by history, and IBS by history. In December 1987, the Veteran complained of stomach pains off and on with diarrhea, constipation, and nausea. An April 1991 VA treatment record includes an assessment of questionable IBS, which the clinician indicated was most likely. In November 1991, this physician opined that the Veteran's abdominal pain was sounding more like peptic ulcer disease versus IBS. The assessment in August 1994 was gastroduodenitis with questionable reflux, IBS, and motility disorder. The diagnosis following VA examination in September 1994 was history of chronic epigastric distress which tends to occur in cycles, with symptoms very similar to that of ulcer disease; however, with no ulcer being found. The examiner added that one should also rule out a motility disorder. The impression following VA examination in January 1999 was that the Veteran had a chronic gastritis condition which had already been established as beginning while on active duty. The examiner added that he "could only surmise that [the Veteran] has some sort of chronic abdominal condition which may or may not be related to the previous endoscopic findings. He may have a more global intestinal motility disorder or irritable bowel syndrome that might explain the chronicity of his complaints and the unlikelihood of complete cure." During VA treatment in July 2003, the Veteran reported abdominal and rib cage pain for many years. He denied nausea, vomiting, and diarrhea on review of systems. The pertinent assessment was rib pain and GERD. In August 2003, the VA examiner who evaluated the Veteran in January 1999 performed another examination. He stated that there was no evidence for any disorder labeled irritable bowel syndrome or generalized intestinal motility disorder and it was unlikely that further testing would reveal such a condition as the way to make this diagnosis is by a combination of history and clinical outcome. In November 2008, Dr. C.N.B., a neuro-radiologist, reviewed the medical records to provide an opinion regarding the Veteran's chronic upper bowel disease (chronic gastritis/duodenitis and hiatal hernia) and lower inflammatory bowel disease. He indicated that the Veteran had abdominal pain, nausea, heartburn, difficulty swallowing, chest pain, vomiting, colon pain, constipation, diarrhea, insomnia, headaches, and depression, and stated that these symptoms matched inflammatory bowel disease (IBD) symptoms. He provided medical articles regarding IBS. Dr. C.N.B. opined that the Veteran had both upper and lower bowel disease for many years (since 1968) and stated that this opinion was consistent with a 1991 diagnosis. Dr. C.N.B. opined that the Veteran likely had both chronic upper bowel disease (chronic gastritis/duodenitis and hiatal hernia) consistent with IBS and lower IBD. He added that these two disease processes were likely interrelated as inflammation was present in IBS and, therefore, these diseases might represent a spectrum of inflammation to include diverticulitis/sigmoiditis. In August 2009, a VA gastroenterologist reviewed the claims file and opined that the November 2004 pathology report from the November 2004 colonoscopy, which showed chronic nonspecific sigmoiditis was very nonspecific and, therefore, nondiagnostic. The VA gastroenterologist questioned whether the Veteran had a diverticular disease associated segmental colitis or whether the pathology features were more consistent with an underlying inflammatory bowel disease. He also questioned whether the findings were more consistent with NSAID related injury. The VA gastroenterologist made several comments regarding the November 2008 opinion from Dr. C.N.B., noting that, while he claimed to have specialized gastrointestinal knowledge, he was a neuro-radiologist and the VA gastroenterologist did not find GI board certification listed on his CV. Regarding Dr. C.N.B.'s discussion of IBS and IBD, the VA gastroenterologist commented that a GI specialist would not confuse these two entities and use the terms interchangeably, as Dr. C.N.B. had done. Regarding Dr. C.N.B.'s comment that the Veteran likely had both IBS and IBD, the VA gastroenterologist stated that IBS was characterized by chronic abdominal pain associated with altered bowel habits in which no organic disease could be found, possibly related to altered motility or visceral hypersensitivity. He stated that, if the Veteran had been diagnosed with gastritis/duodenitis, this implied acid/peptic injury and was an "organic disease." He added that, occasionally, patients with gastritis/duodenitis that is treated with acid blockers may have persistent symptoms of abdominal pain despite optimal acid suppression and, in these cases, there may be a component of visceral hypersensitivity that can be attributed to IBS; however, this had not been clarified in the Veteran's case. The VA gastroenterologist added that, while Dr. C.N.B. stated that the Veteran had IBD, the pathology report of chronic nonspecific sigmoiditis was not diagnostic of inflammatory bowel disease. The VA gastroenterologist specifically responded to the question of whether the Veteran manifested gastrointestinal disabilities including intestinal motility disorder, IBS, hiatal hernia, or psychophysiological gastrointestinal disorder, and stated that the most recent history and physical, from July 2003, made no mention of any of these conditions. The VA gastroenterologist indicated that, to better understand the Veteran's complaint of abdominal pain, he recommended a VA history/physical, review of recent labwork, review of prior endoscopy reports, and a re-review of the November 2004 pathology specimen by a VA pathologist specializing in intestinal disorders. He opined that the Veteran had evidence of gastritis and duodenitis on VA endoscopies, but no evidence of ulcer. In January 2010, Dr. J.W.B., Board Certified in Internal Medicine, reviewed the Veteran's medical file and noted that the Veteran developed a gastrointestinal disorder for which he received treatment during service, and continued to have gastrointestinal problems after service. He summarized pertinent medical evidence of record, including the January 1999 and August 2003 VA examination reports, the April 2005 note from Dr. M.A.M., the November 2008 opinion from Dr. C.N.B., and the August 2009 VA gastroenterologist's opinion. He reported that the Veteran had been diagnosed with numerous conditions, including IBS, chronic gastritis, duodenitis, hiatal hernia, gastroesophageal reflux disease (GERD), diverticulosis, chronic sigmoiditis, and inflammatory bowel disease (IBD) as evidenced by duodenitis and sigmoiditis. He included in his report medical articles, including one discussing IBS. Dr. J.W.B. indicated that the critical question to be answered was whether the permanent and total disability due to the Veteran's major depression was related to his service-connected gastrointestinal disorders. He stated that the Veteran began having gastrointestinal symptoms between 1966 and 1968, during service, and his symptoms had persisted to the present. Dr. J.W.B. stated that the evidence supported the assertion that the Veteran's gastrointestinal maladies were related to IBS. He added that, while this condition was undiagnosed early on, it was his opinion that the actual diagnosis during service was IBS. He added that persons with IBS have increased sensitivity of their gastrointestinal system, causing them to be at increased risk for chronic gastritis, duodenitis, hiatal hernia symptoms, and GERD. He stated that the Veteran had also been diagnosed with chronic sigmoiditis/duodenitis, which meant that there was constant inflammation of the sigmoid colon and the duodenum, which was part of the small bowel, meeting the criteria for IBD. He opined that all of the diagnosed conditions were service-connected, either directly and/or secondarily; the etiology of the extent of the Veteran's impairment was related to the service-connected gastrointestinal disorders, which were related to the Veteran's well-established diagnosis of depression, and; the service-related gastrointestinal disorders and the clinically-severe depression represented manifestations of the same illness, being intimately interrelated. In July 2010, Dr. J.W.B. clarified that his use of the term "within a reasonable degree of medical certainty" was "more likely than not." He added that his medical findings and conclusions were based on review of the entire available medical record. The January 2010 opinion from Dr. J.W.B. provides a nexus between the Veteran's current gastrointestinal disorder other than gastritis and duodenitis with hiatal hernia, to include IBS, diverticulosis, and sigmoiditis, and service. He indicated that the Veteran had IBS, diverticulosis, and sigmoiditis and opined that all of the diagnosed conditions were service-connected, either directly and/or secondarily. While his opinion may be read as indicating that the Veteran's gastrointestinal disorder was related to his depression, the physician also indicated that the Veteran began having gastrointestinal symptoms between 1966 and 1968, during service, and his symptoms had persisted to the present. He added that, while this condition was undiagnosed early on, it was his opinion that the actual diagnosis during service was IBS. Certainly, the physician's opinion could have been stated in clearer terms; however, examination reports are adequate when they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion. Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012). An overall reading of the January 2010 opinion from Dr. J.W.B. expresses his opinion that the Veteran's IBS is related to service. The essential rationale for this opinion was that the Veteran had IBS during service and his symptoms had persisted to the present. The Veteran has, at times, denied certain gastrointestinal symptoms, for example, his bowels were described as normal during VA treatment in December 1971 and he denied nausea, vomiting, and diarrhea on review of systems during VA treatment in July 2003. The Veteran was described as asymptomatic on VA examination in June 1969. Nevertheless, these reports, particularly in light of the post-service treatment history outlined above, are not so significant to render the report of persistent gastrointestinal symptoms not credible. Gastrointestinal symptoms are subject to competent lay reports, in particular the nature of possible relapse and relief. Certainly, additional medical examinations could be requested; however, despite repeated efforts, the Veteran has failed to report for scheduled VA examinations. Accordingly, the claim is being evaluated based on the evidence of record. Under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the veteran shall prevail upon the issue. Although the January 2010 opinion could have been stated in clearer terms, the Board is resolving all doubt regarding interpretation of this opinion in favor of the Veteran and finds that it places the evidence in relative equipoise. The benefit of the doubt rule will therefore be applied and service connection will be granted. The benefit of the doubt rule is a unique standard of proof, and the Court has stated that "[b]y requiring only an 'approximate balance of positive and negative evidence' to prove any issue material to a claim for veterans benefits, 38 U.S.C. § 5107(b), the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding such benefits." Wise v. Shinseki, 26 Vet. App. 517, 531 (2014), citing Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Given the evidence noted above, and emphasizing the requirement that all reasonable doubt be resolved in the Veteran's favor, the Board finds the January 2010 opinion from Dr. J.W.B. satisfies the requirement for a nexus between the gastrointestinal disorder other than gastritis and duodenitis with hiatal hernia and service. Accordingly, service connection is warranted. The Board does not express any opinion or finding as to the severity of the gastrointestinal disorder other than gastritis and duodenitis with hiatal hernia. That is a determination for the AOJ, with due consideration of the Esteban v. Brown ruling, the provisions of the anti-pyramiding provision of 38 C.F.R. § 4.14, and 38 C.F.R. § 4.113 (certain coexisting diseases in the digestive system, particularly within the abdomen, do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding as outlined in § 4.14). See also 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). Therefore, the AOJ will determine in the first instance an appropriate disability rating to assign the Veteran's service-connected gastrointestinal disorder other than gastritis and duodenitis with hiatal hernia, to include IBS, diverticulosis, and sigmoiditis. Service Connection - Depression The claim for service connection for depression was remanded in October 2012, in part, to afford the Veteran a VA psychiatric examination. The record reflects that the Veteran failed to report for VA examinations in January and April 2013 and February and May 2014. When a claimant fails to report for an examination scheduled in conjunction with a reopened claim for a benefit which was previously disallowed, the claim shall be denied. 38 C.F.R. § 3.655(b). However, 38 C.F.R. § 3.655(a) states that action under paragraph (b) is to be taken only when entitlement to a benefit cannot be established without a current VA examination. The Veteran has reported, via his spouse, that he did not receive notice of a VA examination scheduled in February 2014. Regardless, the Board finds that a grant of benefits can be established based on the evidence of record, and thus, that 38 C.F.R. § 3.655(b) does not apply. The Veteran has been diagnosed with depression during the pendency of the appeal, as reflected in VA treatment records and a June 2009 opinion from a VA psychiatrist. There is also competent, probative evidence relating the Veteran's depression to his now service-connected IBS. In this regard, in November 2008, Dr. C.N.B. opined that the Veteran's mood disorder (depression) was due to his IBS/IBD because his records did not support another cause and because this condition was known to be caused by IBS/IBD. He included a medical article in support of his opinion which indicates that IBS patients were more likely to have other disorders, including depression. In January 2010, Dr. J.W.B. opined that the Veteran's depression was etiologically related to his gastrointestinal maladies, on a secondary basis. He summarized pertinent medical evidence of record. He included in his report a summary of a medical study indicating that the concentration of risk of depression or anxiety one year or less before diagnosis with ulcerative colitis suggested that the two psychiatric disorders might be a consequence of early symptoms of a yet as undiagnosed gastrointestinal condition. The study also indicated that most of the excess anxiety or depression diagnosed subsequent to a diagnosis of IBD occurred during the year after IBD was diagnosed and the probable explanation was that the mental disorders were sequelae of IBD. Dr. J.W.B. observed that this article showed that there was a close association between anxiety/depression and IBD, and the Veteran's case was representative of this correlation. Dr. J.W.B. included another article stating that the common psychological symptoms associated with IBS were depression, somatization, anxiety, hostility, phobia, and paranoia. According to this article, up to 50 percent of patients with IBS meet the criteria for a psychiatric diagnosis as compared with an average of 20 percent of patients with organic gastrointestinal disorders and 15 percent of control subjects. Dr. J.W.B. included another article excerpt referencing the observed high prevalence of psychiatric disorders in patients with IBS and commented that, of those who sought medical treatment for IBS, 50 to 90 percent had psychiatric disorders, including panic disorder, generalized anxiety disorder, social phobia, PTSD, and major depression. Dr. J.W.B. indicated that the critical question to be answered was whether the permanent and total disability due to the Veteran's major depression was related to his service-connected gastrointestinal disorders. Dr. J.W.B. stated that IBS and depression or other psychologic diagnoses are closely associated, to the point that a near majority of IBS patients have some type of psychiatric disorder, and stated that IBS and depression are intimately related. He opined that all of the diagnosed conditions were service-connected, either directly and/or secondarily; the etiology of the extent of the Veteran's impairment was related to the service-connected gastrointestinal disorders, which were related to the Veteran's well-established diagnosis of depression, and; the service-related gastrointestinal disorders and the clinically-severe depression represented manifestations of the same illness, being intimately interrelated. In June 2013, Dr. J.W.B. completed a headache Disability Benefits Questionnaire (DBQ), and listed IBS, PTSD, and depression among diagnoses pertaining to the Veteran's headache disorder. He stated that the reported frequency, duration, and intensity of the medical problems listed (chronic tension headaches, chronic gastritis, duodenitis, hiatal hernia, GERD, IBS, bruxism, PTSD, insomnia, chronic pain, and depression) shared a psychophysical configuration that, as previously described, were service-connected (some directly and others on a secondary basis). The November 2008 and January 2010 opinions support a relationship between the Veteran's depression and his now service-connected IBS. While, in June 2009, a VA psychiatrist opined that the Veteran met the criteria for major depressive disorder and that this was not associated with his service-connected gastritis and duodenitis on a direct, secondary, or aggravation basis, she did not specifically address whether his depression was related to IBS (understandably, as service connection had not yet been established for that disability). Given the evidence noted above, and emphasizing the requirement that all reasonable doubt be resolved in the Veteran's favor, the Board finds the November 2008 and January 2010 medical opinions satisfy the requirement for a nexus between the Veteran's depression and his now service-connected gastrointestinal disorder other than gastritis and duodenitis with hiatal hernia, to include IBS. See Wallin, 11 Vet. App. at 512. Accordingly, service connection is warranted. ORDER New and material evidence having been received; the issue of entitlement to service connection for a psychiatric disorder, to include depression and PTSD, is reopened. Service connection for a gastrointestinal disorder other than gastritis and duodenitis with hiatal hernia, to include IBS, diverticulosis, and sigmoiditis, is granted, subject to the laws and regulations governing the award of monetary benefits. Service connection for depression is granted, subject to the laws and regulations governing the award of monetary benefits. REMAND Remand of the claims for service connection for a psychiatric disorder other than depression, to include PTSD; the claim for an evaluation higher than 30 percent for service-connected gastritis and duodenitis with hiatal hernia; and the claim for a TDIU is required to obtain outstanding evidence, to provide the Veteran additional notice, and to afford him a VA examination. The Veteran, via his spouse, has reported submitting additional pertinent evidence to the RO in July 2014, and has asked that his case be referred to the RO for consideration of this evidence, pursuant to 38 C.F.R. §§ 19.31, 19.37. Because this evidence is not presently of record before the Board, the AOJ must ask the Veteran to resubmit this evidence, so that it may be considered in readjudication of the issues remaining on appeal. The Board observes that this case, as discussed above, has a very long procedural history, and prior remands have been required to allow the AOJ to consider evidence submitted by the Veteran in support of his appeal without a waiver of AOJ consideration. See 38 C.F.R. § 20.1304. While the Veteran is, certainly, not required to waive AOJ consideration, the Board points out that remands for this purpose are adding to the long pendency of this appeal. The claims for service connection for chronic headaches, bruxism, a left ring finger disorder, a skin rash, tinnitus, and muscle cramps, which were denied in an April 2014 rating decision, must be remanded for issuance of an SOC. Accordingly, the case is REMANDED for the following action: 1. Furnish to the Veteran and his representative an SOC as regards the claims for service connection for chronic headaches, bruxism, a left finger disorder (also claimed as arthritic pain), a skin rash, tinnitus, and muscle cramps, to include as secondary to service-connected disability, along with a VA Form 9, and afford them the appropriate opportunity to file a substantive appeal perfecting an appeal on these issues. The Veteran and his representative are hereby reminded that to obtain appellate review of any matter not currently in appellate status, a timely appeal must be perfected within 60 days of the issuance of the SOC or one year of issuance of the April 2014 rating decision. 2. Provide the Veteran notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) and 38 C.F.R. § 3.304(f)(5), that advises him of the information and evidence necessary to substantiate his claim for service connection for a psychiatric disorder other than depression, to include PTSD. In particular, the notice must advise the Veteran that evidence from sources other than his service records and evidence of behavior changes may constitute credible supporting evidence of the claimed in-service stressor. 3. Request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his psychiatric and gastrointestinal disorders. After acquiring this information and obtaining any necessary authorization, obtain and associate any outstanding pertinent records with the claims file/e-folder. A specific request should be made for: (1) the report of an abdominal ultrasound performed in October 2003 at the Loma Linda VAMC; (2) photographs obtained in conjunction with a November 2004 colonoscopy performed at Wika Endoscopy Center; (3) records from LaSalle Medical Associates; and (4) records from the VA Loma Linda Healthcare System, to include the Victorville Community Based Outpatient Clinic (CBOC), dated since April 2014. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified and the record clearly documented. 4. Contact the Veteran and ask that he resubmit the evidence reportedly submitted to the RO in July 2014 and received by the RO on July 18, 2014 and July 21, 2014. 5. Clarify whether a VA vocational rehabilitation folder exists and, if so, associate it with the claims file/e-folder. 6. After all available records have been associated with the claims file/e-folder, afford the Veteran a VA examination to determine the etiology of his claimed psychiatric disorder other than depression, to include PTSD. The claims folder/e-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. The examiner must identify all current psychiatric disorders other than depression and should discuss whether the Veteran has had PTSD at any time since around November 1998, when he filed his current claim for a psychiatric disorder. If a diagnosis of PTSD is deemed appropriate, the examiner should clearly explain how the diagnostic criteria are met. With regard to any currently diagnosed psychiatric disorder, the examiner must provide an opinion as to whether the disorder began during active service or is related to any incident of service, or is caused or aggravated by his service-connected gastrointestinal disabilities. The examiner must specifically address whether the Veteran's allegation of in-service personal assault is supported by the evidence of record, to include whether there is any evidence of behavior changes during service or other indications that the alleged stressor occurred. 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: * In his Report of Medical History at separation in November 1968, the Veteran denied having or ever having had depression or excessive worry or nervous trouble of any sort. On examination, clinical evaluation of the psychiatric system was normal. * A May 1985 report from P.M.C., Ph.D., reflects an Axis I diagnosis of adjustment disorder with mixed emotional features, acute, severe. Dr. P.M.C. opined that "There is little doubt that the industrial difficulties which this man has experienced over the preceding months have been followed in the wake by a train of events producing this undercurrent of psychiatric deterioration, now clinically apparent upon examination at this time." He commented that it did not seem that the Veteran's difficulties were entirely industrial in origin, and his pre-existing obsessive-compulsive psychological defenses may have encouraged him to seek redress of problems others might have simply given up and failed to pursue. * In January 2010, Dr. J.W.B. opined that the Veteran's depression was etiologically related to his gastrointestinal maladies, on a secondary basis. He summarized pertinent medical evidence of record. He included in his report an article excerpt referencing the observed high prevalence of psychiatric disorders in patients with IBS and commented that, of those who sought medical treatment for IBS, 50 to 90 percent had psychiatric disorders, including panic disorder, generalized anxiety disorder, social phobia, PTSD, and major depression. * A May 2013 headache DBQ states that the Veteran has PTSD that pertains to his headache disorder. * In June 2013, Dr. J.W.B. completed a headache DBQ, and listed IBS, PTSD, and depression among diagnoses pertaining to the Veteran's headache disorder. He stated that the reported frequency, duration, and intensity of the medical problems listed (chronic tension headaches, chronic gastritis, duodenitis, hiatal hernia, GERD, IBS, bruxism, PTSD, insomnia, chronic pain, and depression) shared a psychophysical configuration that, as previously described, were service-connected (some directly and others on a secondary basis). * In January 2012 and June 2013, the Veteran submitted stressor statements asserting that he had PTSD related to in-service personal assault. He asserted in January 2012 that his service-connected gastrointestinal disorder, along with IBS, chronic tension headaches, and aversion to any sigmoidoscopy procedure performed without a powerful anesthesia by a physician he did not trust, were consistent with the type of reaction one would reasonably expect from a sexual assault victim. He described upper and lower abdominal pain since the incident, accompanied by tension headaches and an intestinal motility disorder. He asserted that his depression was related to the claimed in-service sexual trauma. * In March 2014, the Veteran's ex-wife submitted a statement regarding his claimed stressor. All examination findings, along with a complete explanation for all opinions expressed, should be set forth in the examination report. 7. Conduct any other appropriate development deemed necessary. Thereafter, readjudicate the claims, considering all evidence of record. If any benefit sought remains denied the Veteran and his representative should be provided an SSOC. An appropriate period of time should be allowed for a response. The appellant has the right to submit additional evidence and argument on the matters that the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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