Citation Nr: 1441401 Decision Date: 09/16/14 Archive Date: 09/22/14 DOCKET NO. 09-30 556 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for polyarthralgia, claimed as Sjögren's syndrome (hereinafter Sjögren's syndrome). 2. Entitlement to service connection for gastroenteritis, to include as secondary to Sjögren's syndrome. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD L. Pelican, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1961 to July 1963, with subsequent periods of active duty from April 1985 to September 1985, October 1985 to March 1986, April 1986 to September 1986, and October 1986 to March 1987. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. Original jurisdiction currently resides at the RO in Oakland, California. In October 2013, the Board remanded these matters for additional development. With respect to the claim for Sjögren's syndrome, that development has been completed and the case is properly before the Board. However, with respect to the gastroenteritis claim, there has not been substantial compliance with the remand directives. Thus, that appeal must be remanded again. See Stegall v. West, 11 Vet. App. 268 (1998). The record reflects that after the final Supplemental Statement of the Case (SSOC) the Veteran submitted additional relevant evidence to the Board. No subsequent SSOC was issued, but this is not necessary because the evidence was accompanied by a waiver of initial review of the evidence by the agency of original jurisdiction in accordance with 38 C.F.R. § 20.1304 (2013). The issue of total rating based on unemployability due to service-connected disability (TDIU) has been raised, but was not adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over that claim and it is referred to the AOJ for appropriate action. The issue of entitlement to service connection for gastroenteritis is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The most probative evidence of record reflects a current diagnosis of Sjögren's syndrome that initially manifested during active service. CONCLUSION OF LAW Resolving any reasonable doubt in the Veteran's favor, the elements required to establish service connection for Sjögren's syndrome have been met. 38 U.S.C.A. §§ 1131, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran essentially contends that her Sjögren's syndrome is etiologically related to service, and that service-connection is therefore warranted. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1131 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2013). 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) (2013). To establish service connection on a direct basis, a Veteran must show: (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The April 2014 VA examination report indicates the Veteran has a current diagnosis of Sjögren's syndrome. Thus, the first Hickson element is satisfied. Regarding the second and third Hickson elements, in-service incurrence and evidence of a medical nexus, the Board acknowledges the Veteran's service treatment records are silent for a diagnosis of or treatment for Sjögren's syndrome. However, an August 1985 service treatment record indicates the Veteran received care for arthralgia of her left foot, during a period of active duty service. Additionally, in an April 2008 letter, Dr. J. W., the Veteran's treating rheumatologist, opined that the Veteran's Sjögren's syndrome initially manifested during her period of active service between 1984 and 1987. In his rationale for the rendered opinion, Dr. J. W. explained that the symptoms in question were migratory symmetrical polyarthralgias, symptoms that are quite typical of early Sjögren's syndrome, and eventually became the swollen joints the Veteran now suffers from. He further explained that the joints in question, hands and feet, were also typical of Sjögren's syndrome. He also noted that the Veteran had a positive antinuclear antibody test which showed a slow progression of the initial illness, and had lymphadenopathy, which demonstrated that the Veteran's immune system was beginning to be overactive. Additionally, the September 2008 VA examiner opined that the Veteran's symptoms of inflammatory arthritis first manifested in August 1985, and that it was easy to deduce that those symptoms were related to the Veteran's current Sjögren's syndrome. Resolving all reasonable doubt in the Veteran's favor, the Board finds that the second and third Hickson elements are met as the competent medical opinion indicates that Sjögren's syndrome is first manifested during active duty service. Thus, service connection for Sjögren's syndrome is warranted. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013). ORDER Entitlement to service connection for Sjögren's syndrome is granted. REMAND Unfortunately, the Board again finds that further development is necessary regarding the Veteran's service connection claim for gastroenteritis. The Board finds that the April 2014 VA examination report is inadequate. Specifically, in addressing the Veteran's claim for service connection on a direct basis, the examiner stated that the claims file was silent for records stating that condition in 1963. However, the Veteran's service treatment records clearly indicate a diagnosis of gastritis of unknown etiology in April 1963, and acute gastritis and acute gastroenteritis in June 1963. The direct service connection opinion is therefore based on an inaccurate factual premise and is inadequate. Moreover, as to the question of whether the Veteran's gastroenteritis may be secondary to her service-connected Sjögren's syndrome, the examiner opined that gastroenteritis was less likely than not caused or aggravated by Sjögren's syndrome. The examiner's rationale was conclusory in nature in that it only described the nature of gastroenteritis and did not sufficiently explain why it was not caused or aggravated by the Veteran's service-connected disability. If VA provides a Veteran with an examination in a service connection claim, the examination must be adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As there has not been substantial compliance with the remand directives with respect to this issue, this claim must be remanded again. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). Expedited handling is requested.) 1. Take appropriate action to secure copies of any VA treatment records not already of record relating to the Veteran's treatment for any gastrointestinal disorders, to include gastroenteritis. If VA is unable to obtain these records, the Veteran must be notified of this fact and all efforts to obtain them must be documented and associated with the claims file. 2. Request the Veteran furnish all dates and places of non-VA treatment for her gastrointestinal disorders, to include gastroenteritis, that is not yet of record. After obtaining authorization from the Veteran, request copies of any outstanding treatment records from any treatment provider identified by the Veteran. If VA is unable to obtain such records, the Veteran should be accorded the opportunity to furnish such records directly to VA. All records received should be associated with the claims file. 3. Thereafter, obtain an addendum opinion from the VA examiner who authored the April 2014 examination report. If that examiner is not available, the opinion should be obtained from another VA medical examiner skilled in the diagnosis and treatment of gastrointestinal disorders. In either case, if it is determined that another examination would be helpful, the Veteran should be scheduled for a new examination. Based on the review of the Veteran's claims file, the examiner is asked to provide an opinion on the following: a) Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's diagnosed gastroenteritis is related to any in-service disease, event, or injury, to include her documented gastritis and gastroenteritis in April and June 1963? b) Whether it is at least as likely as not (a probability of 50 percent or greater) that the diagnosed gastroenteritis is due to or caused by a service-connected disability, to include Sjögren's syndrome? d) Whether it is at least as likely as not (a probability of 50 percent or greater) that the diagnosed gastroenteritis is aggravated (i.e., worsened) beyond the natural progress by a service-connected disability, to include Sjögren's syndrome? e) Whether the Veteran's gastroenteritis is a symptom of her service-connected Sjögren's syndrome? If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the Veteran's gastroenteritis disability found prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected disability, to include Sjögren's syndrome. The examiner should review the Veteran's claims file, to include a copy of this remand, in conjunction with the examination. Any indicated studies or diagnostic tests should be performed. Any opinions offered should be accompanied by supporting rationales. If the examiner is unable to offer any of the requested opinions, it is essential that the he or she offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). In formulating the opinions, the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs