Citation Nr: 1546759 Decision Date: 11/04/15 Archive Date: 11/10/15 DOCKET NO. 07-01 322 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a digestive disability, to include diverticulitis. 2. Entitlement to service connection for a bilateral hip disability, to include as secondary to the service-connected osteoarthritis of the thoracolumbar spine. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The Veteran served on active duty from August 1959 to August 1991. These matters initially came before the Board of Veterans' Appeals (Board) on appeal of a September 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The RO in St. Louis, Missouri, currently has original jurisdiction over the Veteran's claims. The Board remanded the Veteran's claims for additional development in August 2009, September 2013, and March 2015. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND These claims have been remanded multiple times for VA examinations and opinions but, unfortunately, none have been adequate to decide the claims. The Veteran claims that he has current digestive disability related to service and bilateral hip disability related to his service connected thoracolumbar spine arthritis. Service treatment records indicate the Veteran experienced digestive problems throughout service, complaining multiple times of diarrhea, bloody stools, and stomach pains. The September 2006 VA examiner opined that the Veteran's diverticulitis was not related to service but did not provide a rationale, and found that there were no objective findings to support a definitive diagnosis with regard to his polyarthralgia of the hips. The Board thus remanded the claims in August 2009 for new VA examination and opinions. Additional VA examinations were conducted and opinions offered, but in September 2013, the Board found them inadequate, for the following reasons. As to the claim for service connection for digestive problems, to include diverticulosis, the March 2013 VA examiner wrote, "Because there is no evidence of a [gastrointestinal] disorder while the [V]eteran was on active duty[,] it is less likely as not that diverticulitis is service related." However, the service treatment records show some complaints of gastrointestinal symptoms during service and thus the medical opinion appears to be based upon an inaccurate factual premise. The Board therefore remanded this claim and sought clarification of this medical opinion. As to the claim for service connection for a bilateral hip disability, the Board asked the examiner to address whether the Veteran's current bilateral hip disability had its onset during service, was in any other way causally related to active service or was proximately due to or aggravated by the Veteran's back disability. In the examination report, the examiner wrote the following: "Because there is no evidence of a hip problem found in his [claims] file and there is no evidence in the medical literature that osteoarthritis of the lumbar [spine] can cause bilateral hip osteoarthritis[, t]herefore, it is less likely as not that bilateral hip arthritis is service related." The Board found that this opinion was flawed because it is unclear what the examiner meant when he said there was no evidence of a hip problem found in the claims file. The Board noted that the Veteran has complained of hip problems during the appeal, and was diagnosed with bilateral hip arthritis in the March 2013 VA examination. Thus, there was evidence of a bilateral hip disability in the claims file. The Board noted the possibility that the examiner was addressing the service treatment records when he said there was no evidence of a hip problem, as the service treatment records are silent for complaints of hip pain, either right or left, and also that the examiner's opinion did not address whether it is at least as likely as not that the service-connected thoracolumbar spine arthritis aggravated the bilateral hip disability. Thus, the Board remanded this claim as well for clarification. The Veteran was afforded additional VA examinations in November 2013, but the Board found these inadequate in its March 2015 remand. After conducting a clinical examination and reviewing the Veteran's claims file, the November 2013 VA examiner opined that it was less likely than not that the Veteran's claimed digestive disorder was related to service because the Veteran was not diagnosed with diverticulosis while on active duty. The Board noted that the VA examiner's opinion provided no rationale as to why the Veteran's diverticulosis could not develop after his active duty service. See 38 C.F.R. § 3.303(d) (service connection may 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). The Board also noted that during the examination, the Veteran reported that he began experiencing gastrointestinal symptoms in the 1980s, but the VA examiner did not address the Veteran's reported in-service symptomatology or comment on the multiple gastrointestinal complaints documented in the Veteran's service treatment records and highlighted in the Board's September 2013 remand instructions. The Board thus found that a new opinion was required. As to the hips, the November 2013 VA examiner opined that the "available objective evidence does not support that the [Veteran's] hip arthritis is service connected, cause[d] by the service connected thoracolumbar osteoarthritis, or permanently aggravated by or beyond its normal progression due to the thoracolumbar osteoarthritis." The Board found that the examiner did not provide any rationale for this statement and that the opinion was therefore inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (requiring VA medical examiners to provide a "reasoned medical explanation connecting" observations and conclusions). The Board also noted that the examination was inadequate because the VA examiner indicated that the Veteran's bilateral acetabular impingement was "not aggravated by the service connected condition" but she did not provide any rationale for this statement and did not comment on whether the Veteran's bilateral acetabular impingement was related to service or due to the service-connected spine disability. The Board notes that on the November 2013 VA examination the Veteran indicated that his hip pain began while doing extensive running in service. Finally, in April 2015, a VA nurse practitioner offered opinions as to the etiology of the digestive and hip disabilities. As to the digestive disability, she found it was not likely related to service and wrote, "I did not find evidence of treatment or symptoms of diverticulosis or diverticulitis while in the military," and noted that diverticula are common, especially after age 40, and seldom cause problems. She also found the hip disability not likely related to service, stating, "I did not find evidence in the medical records that indicated a hip injury or treatment. During the exam, the vet's clinical symptoms were related more to the lumbar spine with sciatica than a hip condition." The Board finds these opinions to be inadequate because they were based in part on the lack of medical evidence of treatment, symptoms, or injuries, but there was in fact medical evidence of gastrointestinal symptoms in service and in any event the Board has found that the Veteran's lay statements as to in-service gastrointestinal symptoms are competent and credible. Moreover, the nurse practitioner did not opine as to whether the lumbar spine arthritis caused or aggravated the current hip disabilities, stating only that the symptoms were related to the lumbar spine but not the hip, but not explaining whether there is a current hip disability related to the lumbar spine or the reasons for such a conclusion. Given the multiple prior remands, the Board finds that separate opinions by an appropriate specialist physician on each issue are warranted. The physicians should consider all of the evidence including the Veteran's competent and credible lay statements and the medical evidence and opinions. The digestive specialist should opine as to whether the current digestive disability is related to service and the orthopedic specialist should opine as to whether a current hip disability is either caused or aggravated by the lumbar spine arthritis or related to or had its onset during the Veteran's military service, to include consideration of the Veteran's statement that his hip pain began while running in service. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain an opinion from an appropriate specialist physician as to the etiology of the Veteran's current digestive disability. The claims file must be sent to the physician for review. The physician should indicate whether it is as least as likely as not (50 percent probability or more) that any digestive disability that the Veteran has had since he filed his November 2004 claim is related to or had its onset during the Veteran's military service. The physician should specifically address the gastrointestinal symptoms in service that have been noted in the Board's decision and also consider the Veteran's lay statements as to having frequent gastrointestinal symptoms during and since service to be credible. A complete rationale should accompany any opinion provided. 2. Obtain an opinion from an appropriate specialist physician as to etiology of any disability of either hip that the Veteran has had since he filed his November 2004 claim. The claims file must be sent to the physician for review. The physician should first indicate whether it is as least as likely as not (50 percent probability or more) that any such disability is either (a) caused or (b) aggravated by the service connected lumbar spine arthritis. The physician should then indicate whether any such disability is related to or had its onset during the Veteran's military service, to include consideration of the Veteran's statement that his hip pain began while running in service. The examiner should consider this statement as to the onset of hip pain to be credible. A complete rationale should accompany each opinion provided. 3. After the above development has been completed, readjudicate the claims for entitlement to service connection for a digestive disability and a bilateral hip disability. If any benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters 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 2014). _________________________________________________ S. C. KREMBS Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).