Citation Nr: 1600390 Decision Date: 01/06/16 Archive Date: 01/21/16 DOCKET NO. 11-00 610 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a back disability, to include as secondary to service-connected first toe fracture residuals. 2. Entitlement to service connection for a gastrointestinal disability, including gastroesophageal reflux disorder (GERD), to include as secondary to medications taken to treat service-connected left inguinal hernia and first toe fracture residuals. 3. Entitlement to an increased disability rating for first toe fracture residuals, with degenerative joint disease, in excess of 10 percent. 4. Entitlement to an increased disability rating for recurrent left inguinal hernia and left hydrocele, status post herniorrhaphy times three, in excess of 10 percent. ATTORNEY FOR THE BOARD E. Blowers, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from November 1963 to December 1965. This matter came before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the RO in San Juan, the Commonwealth of Puerto Rico, which, in pertinent part, denied service connection for a back/spinal disability. This matter also comes on appeal from a May 2010 RO rating decision denying service connection for GERD, and a June 2012 RO rating decision denying increased disability ratings for recurrent left inguinal hernia and left hydrocele, status post herniorrhaphy times three, and first toe fracture residuals, with degenerative joint disease. This case was previously before the Board in March 2014, where the service connection issues on appeal were remanded for additional development. As the instant decision once again remands these issues for further development, the Board need not discuss its responsibilities under Stegall v. West, 11 Vet. App. 268 (1998), at this time. In order to encompass all claimed symptoms of disability, the Board has broadened and reframed the issue of service connection for GERD to one for service connection for a gastrointestinal disability, that includes GERD, to include as secondary to medications taken to treat the service-connected left inguinal hernia and first toe fracture residuals. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that a claim for benefits for one psychiatric disability also encompassed benefits based on other psychiatric diagnoses and should be considered by the Board to be within the scope of the filed claim). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). REMAND Service Connection for Back and Gastrointestinal Disabilities The Veteran previously received a VA back/spinal examination in January 2010. Pursuant to the Board's March 2014 Remand, an addendum opinion, without examination, was rendered in April 2014. The Veteran also received a VA gastrointestinal examination in May 2010. Subsequently, VA received a March 2015 letter from a private physician. Relevant to the service connection issues on appeal, the private physician diagnosed the Veteran with myositis of the lumbar spine muscles, and gastrointestinal disabilities of peptic ulcer disease and erosive gastritis. These back and gastrointestinal disabilities were not diagnosed and/or discussed in the relevant VA examinations and may represent newly diagnosed back and gastrointestinal disabilities. Further, the private physician opined that the disabilities were "more probable than not secondary to [the Veteran's] military service performance;" however, no rationale for this opinion was provided, and there is no indication as to what evidence the private physician relied upon in rendering this opinion. As such, the private opinion is inadequate for decision purposes, and the Board finds remand for new VA back/spinal and gastrointestinal examinations and opinions to be warranted. Outstanding Treatment Records VA should obtain all relevant VA and private clinical documentation which could potentially be helpful in resolving the issues. Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). On remand the AOJ should attempt to obtain any outstanding VA treatment (medical) records for the period from June 2012. Increased Ratings for Toe Fracture and Left Inguinal Hernia In a June 2012 rating decision, the RO denied increased ratings for first toe fracture residuals, with degenerative joint disease, and recurrent left inguinal hernia and left hydrocele, status post herniorrhaphy times three. The Veteran filed a notice of disagreement (NOD) to the denial in June 2012. It does not appear that a statement of the case (SOC) has yet been issued concerning the increased disability rating denials. The Court has directed that, where a veteran has submitted a timely NOD with an adverse decision and the RO has not subsequently issued a SOC addressing the issue, the Board should remand the issue(s) to the RO for issuance of a SOC. Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). Accordingly, the case is REMANDED for the following action: 1. Associate with the record all VA treatment (medical) records pertaining to the treatment of back/spinal and gastrointestinal disabilities, not already of record, for the period on and after June 2012. 2. Then, schedule the appropriate VA examination(s) for back/spinal and gastrointestinal disabilities. The relevant documents in the record should be made available to the examiner(s), who should indicate on the examination report(s) that he/she has reviewed the documents in conjunction with the examination. A detailed history of relevant symptoms should be obtained from the Veteran. All indicated studies should be performed. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. The examiner should provide the following opinions: Back/Spinal Disabilities A) After examination of the Veteran, identify all currently diagnosed back/spinal disabilities. The VA examiner should specifically address whether the Veteran has myositis of the lumbar spine muscles. If the VA examiner assesses that the Veteran does not have myositis of the lumbar spine muscles, the VA examiner should address the discrepancy with the March 2015 private examination letter diagnosing myositis of the lumbar spine muscles. B) Is it at least as likely as not (50 percent or higher degree of probability) that any currently diagnosed back/spinal disability had its onset during a period of active service? C) Is it at least as likely as not (50 percent or higher degree of probability) that the service-connected left foot, first toe fracture residuals, with degenerative joint disease, caused a currently diagnosed back/spinal disability, including as due to altered gait? D) Is it at least as likely as not (50 percent or higher degree of probability) that the service-connected left foot, first toe fracture residuals, with degenerative joint disease, aggravated (that is, permanently worsened in severity) a currently diagnosed back/spinal disability, including as due to altered gait? Gastrointestinal Disability A) After examination of the Veteran, identify all currently diagnosed gastrointestinal disabilities. The VA examiner should specifically address whether the Veteran has peptic ulcer disease and/or erosive gastritis. If the VA examiner finds that the Veteran does not have peptic ulcer disease and/or erosive gastritis, the VA examiner should address the discrepancy with the March 2015 private examination letter diagnosing peptic ulcer disease and erosive gastritis. B) Is it at least as likely as not (50 percent or higher degree of probability) that any currently diagnosed gastrointestinal disability had its onset during a period of active service? C) Is it at least as likely as not (50 percent or higher degree of probability) that one or more medications prescribed to treat one or more service-connected disabilities caused a currently diagnosed gastrointestinal disability? In rendering the opinion, the VA examiner should consult the medication list provided with the March 2015 private examination letter. D) Is it at least as likely as not (50 percent or higher degree of probability) that one or more medications prescribed to treat one or more service-connected disabilities aggravated (that is, permanently worsened in severity) a currently diagnosed gastrointestinal disability? In rendering the opinion, the VA examiner should consult the medication list provided with the March 2015 private examination letter. If it is the examiner's opinion that there is aggravation of a currently diagnosed back/spinal and/or gastrointestinal disability, he or she should identify the baseline level of severity of the disability prior to the onset of aggravation, or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity. "Aggravation" is defined for legal purposes as a worsening of the underlying condition (versus a temporary flare-up of symptoms) beyond its normal progression. 3. Then, readjudicate the issues of service connection for a back disability, to include as secondary to service-connected first toe fracture residuals, and a gastrointestinal disability, including GERD, to include as secondary to medications taken to treat service-connected left inguinal hernia and first toe fracture residuals. If any benefit sought on appeal remains denied, the Veteran and any newly appointed representative should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response before the case is returned to the Board. 4. Issue a SOC addressing the issues of increased disability ratings for first toe fracture residuals with degenerative joint disease, and recurrent left inguinal hernia and left hydrocele, status post herniorrhaphy times three. The Veteran and any newly appointed representative should be given the appropriate opportunity to respond to the SOC. The RO should advise the Veteran that the claims file will not be returned to the Board for appellate consideration of these issues following the issuance of the SOC unless the appeal is perfected by a substantive appeal. 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the Court. 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) (2015).