Citation Nr: 1601353	
Decision Date: 01/13/16    Archive Date: 01/21/16

DOCKET NO.  13-05 406	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for cervical esophageal stricture with cervical dysphagia, to include as secondary to service-connected degenerative arthritis of the cervical spine with cervical disc disease of C5-6.

2.  Entitlement to service connection for a gastrointestinal disorder other than cervical esophageal stricture, to include gastritis, gastroesophageal reflux disease (GERD), Barrett's esophagus, hiatal hernia, and residuals of an ulcer disease, to include as secondary to service-connected degenerative arthritis of the cervical spine with cervical disc disease of C5-6. 


REPRESENTATION

Appellant represented by:	The American Legion




ATTORNEY FOR THE BOARD

D. Cherry, Counsel


INTRODUCTION

The Veteran had active service from July 1951 to July 1955 and from October 1956 to September 1972. 

These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

In August 2015, the Board requested a medical opinion from a Veterans Health Administration (VHA) expert.  In October 2015, the Board received the VHA expert medical opinion.  Later in October 2015, the Board afforded the Veteran 60 days to review the medical opinion and submit any additional evidence or argument.  The appellant has not responded.

The RO has adjudicated the issue of entitlement to service connection for GERD and gastritis.  The medical evidence, to include service treatment records, reveals diagnoses of Barrett's esophagitis, hiatal hernia, and in-service ulcer disease.  Pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Board must consider the disorders other than GERD and gastritis as part of the issue of entitlement to service connection for a gastrointestinal disorder.  In light of the above, the issues are as stated on the first page of this decision.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The issue of entitlement to service connection for a gastrointestinal disorder other than cervical esophageal stricture is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The preponderance of competent medical evidence shows that the Veteran's cervical esophageal stricture with cervical dysphagia is related to active service


CONCLUSION OF LAW

Cervical esophageal stricture with cervical dysphagia was incurred in service.  38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met.  Given the fully favorable decision below, a detailed explanation of how VA complied with the VCAA is unnecessary.

Pertinent law and regulations

In general, service connection may be granted for disability or injury incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131.

Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service.  38 C.F.R. § 3.303(a).

In order to establish service connection for a claimed disorder, there must be (1) medical 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) medical 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).

Where chronicity of a disease is not shown in service, service connection may yet be established by showing continuity of symptomatology between the currently claimed disability and a condition noted in service.  38 C.F.R. § 3.303(b).

The mere fact of an in-service injury is not enough; there must be evidence of a chronic disability resulting from that injury.  In order to show a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a veteran's claim.  See 38 C.F.R. § 3.303(b).

The chronicity provision of 38 C.F.R. § 3.303(b) applies when evidence, regardless of its date, establishes that a veteran had a chronic condition in service and still has that condition.  There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence.

Analysis

Hickson element (1), current disability, has been met.  The November 2010 VA examiner diagnosed cervical esophageal stricture with secondary cervical dysphagia.  The VHA expert noted that cervical dysphagia may be due to, among other disorders, neuromuscular problems of the esophagus.

Hickson element (2), in-service disease or injury, is satisfied.  The Veteran was treated for in-service neck pain, and October 1971 X-rays showed cervical disc disease with associated osteoarthritic changes.  

Hickson element (3), medical nexus, is established.  The VHA expert is the only medical provider who addressed whether the cervical esophageal stricture with secondary cervical dysphagia is related to the in-service neck symptomatology.  The VHA expert opined that the cervical esophageal stricture with secondary cervical dysphagia is likely related to the in-service neck problems.

In summary, the Board is of the opinion that the Veteran has met all requirements needed to establish service connection for cervical esophageal stricture with cervical dysphagia on a direct basis.  The benefit sought on appeal is accordingly allowed.

Finally, since the Board is granting the claim on a direct basis, the Board does not have address whether the cervical esophageal stricture with cervical dysphagia is secondary to the service-connected degenerative arthritis of the cervical spine with cervical disc disease of C5-6.


ORDER

Entitlement to service connection for cervical esophageal stricture with cervical dysphagia is granted.


REMAND

The VHA expert did not provide sufficient bases for his opinions in general on the gastrointestinal disorders and especially in particular for whether the gastritis is related to the use of non-steroidal anti-inflammatory drugs taken for the service-connected degenerative arthritis of the cervical spine with cervical disc disease of C5-6.  Additionally, a medical opinion must be obtained addressing whether the gastrointestinal disorders are secondary to the now-service-connected cervical esophageal stricture with cervical dysphagia.

There is also additional medical evidence submitted after a January 2013 statement of the case regarding the use of non-steroidal anti-inflammatory drugs, and the Veteran has not waived agency of original jurisdiction consideration of such evidence.  38 C.F.R. § 20.1304(c) (2015).

In light of the remand, the AOJ should ask the Veteran to identify all treatment for his gastrointestinal disorders.

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.  Ask the Veteran to identify all treatment for his gastrointestinal disorders and obtain any identified treatment records.  Regardless of the claimant's response, obtain all records from the Gulf Coast Veterans Health Care System from September 2015 to the present.

2.  Thereafter, schedule the Veteran for VA examination to determine the nature and extent of his gastrointestinal disorders.  The claims folder is to be made available to the examiner to review.  The examiner is to provide a detailed review of the appellant's pertinent medical history, current complaints, and the nature and extent of any disability due to his gastrointestinal disorders.  Specifically, the examiner should provide an opinion as to the following inquiries:

      (a)  GERD

(1)  The examiner should opine on whether it is as least as likely as not (50 percent or greater) that GERD is related to active service, to include in-service to include the in-service neck and gastrointestinal symptomatology.

(2)  The examiner should opine on whether it is as least as likely as not (probability of 50 percent or greater) that GERD is caused or aggravated (permanently worsen beyond the normal progression of the disability) by service-connected degenerative arthritis of the cervical spine with cervical disc disease of C5-6 or cervical esophageal stricture with cervical dysphagia, to include use of non-steroidal anti-inflammatory drugs, such as Tolectin, Celebrex, and nabumetone, for treating degenerative arthritis of the cervical spine with cervical disc disease of C5-6.

(3)  If the examiner finds that GERD is aggravated by degenerative arthritis of the cervical spine with cervical disc disease of C5-6 or cervical esophageal stricture with cervical dysphagia, then he/she should quantify the degree of aggravation.

(b)  Gastritis

(1)  The examiner should opine on whether it is as least as likely as not (50 percent or greater) that the gastritis is related to active service, to include in-service to include the in-service neck and gastrointestinal symptomatology.

(2)  The examiner should opine on whether it is as least as likely as not (probability of 50 percent or greater) that the gastritis is caused or aggravated (permanently worsen beyond the normal progression of the disability) by service-connected degenerative arthritis of the cervical spine with cervical disc disease of C5-6 or cervical esophageal stricture with cervical dysphagia, to include use of non-steroidal anti-inflammatory drugs, such as Tolectin, Celebrex, and nabumetone, for treating degenerative arthritis of the cervical spine with cervical disc disease of C5-6.

(3)  If the examiner finds that the gastritis is aggravated by degenerative arthritis of the cervical spine with cervical disc disease of C5-6 or cervical esophageal stricture with cervical dysphagia, then he/she should quantify the degree of aggravation.

(c)  Barrett's esophagus

(1)  The examiner should opine on whether it is as least as likely as not (50 percent or greater) that the Barrett's esophagus is related to active service, to include in-service to include the in-service neck and gastrointestinal symptomatology.

(2)  The examiner should opine on whether it is as least as likely as not (probability of 50 percent or greater) that the Barrett's esophagus is caused or aggravated (permanently worsen beyond the normal progression of the disability) by service-connected degenerative arthritis of the cervical spine with cervical disc disease of C5-6 or cervical esophageal stricture with cervical dysphagia, to include use of non-steroidal anti-inflammatory drugs, such as Tolectin, Celebrex, and nabumetone, for treating degenerative arthritis of the cervical spine with cervical disc disease of C5-6.

(3)  If the examiner finds that the Barrett's esophagus is aggravated by degenerative arthritis of the cervical spine with cervical disc disease of C5-6 or cervical esophageal stricture with cervical dysphagia, then he/she should quantify the degree of aggravation.

(d)  Hiatal hernia

(1)  The examiner should opine on whether it is as least as likely as not (50 percent or greater) that the hiatal hernia is related to active service, to include in-service to include the in-service neck and gastrointestinal symptomatology.

(2)  The examiner should opine on whether it is as least as likely as not (probability of 50 percent or greater) that the hiatal hernia is caused or aggravated (permanently worsen beyond the normal progression of the disability) by service-connected degenerative arthritis of the cervical spine with cervical disc disease of C5-6 or cervical esophageal stricture with cervical dysphagia, to include use of non-steroidal anti-inflammatory drugs, such as Tolectin, Celebrex, and nabumetone, for treating degenerative arthritis of the cervical spine with cervical disc disease of C5-6.

(3)  If the examiner finds that the hiatal hernia is aggravated by degenerative arthritis of the cervical spine with cervical disc disease of C5-6 or cervical esophageal stricture with cervical dysphagia, then he/she should quantify the degree of aggravation.
 
(e)  Residuals of ulcer disease

(1)  The examiner should opine on whether it is at least as likely as not (50 percent or greater) that the Veteran has or has had an ulcer disease or residuals thereof at any time since he filed his claim in October 2009. 

(2)  If the Veteran has or has had an ulcer disease or residuals thereof at any time since he filed his claim in October 2009, the examiner should opine on whether it is as least as likely as not (50 percent or greater) that the ulcer disease or residuals thereof are related to active service, to include in-service to include the in-service neck and gastrointestinal symptomatology.

(3)  If the Veteran has or has had an ulcer disease or residuals thereof at any time since he filed his claim in October 2009, the examiner should opine on whether it is as least as likely as not (probability of 50 percent or greater) that the ulcer disease or residuals thereof are caused or aggravated (permanently worsen beyond the normal progression of the disability) by service-connected degenerative arthritis of the cervical spine with cervical disc disease of C5-6 or cervical esophageal stricture with cervical dysphagia, to include use of non-steroidal anti-inflammatory drugs, such as Tolectin, Celebrex, and nabumetone, for treating degenerative arthritis of the cervical spine with cervical disc disease of C5-6.

(4)  If the examiner finds that the ulcer disease or residuals thereof are aggravated by degenerative arthritis of the cervical spine with cervical disc disease of C5-6 or cervical esophageal stricture with cervical dysphagia, then he/she should quantify the degree of aggravation.

(f)  Any other current gastrointestinal disorder other than cervical esophageal stricture

(1)  The examiner should opine on whether it is as least as likely as not (50 percent or greater) that any other currently diagnosed gastrointestinal disorder is related to active service, to include in-service to include the in-service neck and gastrointestinal symptomatology.

(2)  The examiner should opine on whether it is as least as likely as not (probability of 50 percent or greater) that any other currently diagnosed gastrointestinal disorder is caused or aggravated (permanently worsen beyond the normal progression of the disability) by service-connected degenerative arthritis of the cervical spine with cervical disc disease of C5-6 or cervical esophageal stricture with cervical dysphagia, to include use of non-steroidal anti-inflammatory drugs, such as Tolectin, Celebrex, and nabumetone, for treating degenerative arthritis of the cervical spine with cervical disc disease of C5-6.

(3)  If the examiner finds that any other currently diagnosed gastrointestinal disorder is aggravated by degenerative arthritis of the cervical spine with cervical disc disease of C5-6 or cervical esophageal stricture with cervical dysphagia, then he/she should quantify the degree of aggravation.

A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.  However, if any requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation.

3.  Thereafter, the AOJ must readjudicate the issue on appeal with consideration of all evidence of record to include the evidence received since the January 2013 statement of the case.  If the benefit is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration.

The appellant 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.  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).




______________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs