Citation Nr: 1604187 Decision Date: 02/04/16 Archive Date: 02/11/16 DOCKET NO. 05-27 543 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for asthma, to include as secondary to service-connected ulcerative colitis. 2. Entitlement to service connection for allergies, to include as secondary to service-connected ulcerative colitis. 3. Entitlement to service connection for a disability manifested by muscle and joint weakness and pain, to include as secondary to service-connected ulcerative colitis. 4. Entitlement to service connection for an upper gastrointestinal disorder, including gastroesophageal reflux disease (GERD), to include as secondary to service-connected ulcerative colitis. 5. Entitlement an initial compensable rating prior to April 23, 2010 and 10 percent thereafter for vascular and tension headaches. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Willis, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1966 to September 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. This appeal was processed using the VBMS paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. In February 2008 and September 2012, the Board remanded the matters for additional development. Amongst other things, the Board remanded the issue of an increased level of compensation based on waiver of military retired pay for issuance of a Statement of the Case. In that regard, the Board stated that the RO never took further action following a March 2006 Report of Contact regarding the Veteran's September 2005 disagreement with his level of compensation. In April 2014, the RO issued a letter which outlined the Veteran's history of military pay and indicated that a May 2006 notification letter also confirmed a full grant of the benefits sought. The Board is satisfied there was substantial compliance with its remand orders. See Stegall v. West, 11 Vet. App. 268 (1998); Dymant v. West, 13 Vet. App. 141 (1999). The issues of entitlement to service connection for asthma, allergies, a disability manifested by muscle and joint weakness and pain and an upper gastrointestinal disorder are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT In a May 2014 letter, the Veteran informed the Board that he was withdrawing his increased rating claim for vascular and tension headaches. CONCLUSION OF LAW The criteria for withdrawal of an appeal by the appellant have been met. 38 U.S.C.A. §§ 7105(b) and (d) (West 2014); 38 C.F.R. § 20.204 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION In a May 2014 letter, the Veteran stated that he wished to withdraw his increased rating claim for vascular and tension headaches. Under 38 U.S.C.A. § 7105, the Board does not have jurisdiction over issues withdrawn by a Veteran. Pursuant to 38 C.F.R. § 20.204, a Veteran can withdraw his appeal through written correspondence. Thus, the Board has no jurisdiction to consider the withdrawn issue and it shall therefore be dismissed. ORDER The claim for entitlement to an initial compensable rating prior to April 23, 2010 and in excess of 10 percent thereafter for vascular and tension headaches is dismissed. REMAND The Board finds that a remand is necessary to obtain an adequate medical opinion. In that regard, the Veteran was afforded a VA examination in October 2014 regarding the issues of entitlement to service connection for asthma, allergies, a disability manifested by muscle and joint weakness and pain and an upper gastrointestinal disorder. In the lengthy October 2014 opinion, the examiner appeared to misunderstand the Board's request and ultimately provided an unclear opinion. The Board requested medical opinions regarding service connection on a direct and secondary basis. Specifically, the Board requested, amongst other things, that the examiner opine whether the Veteran's treatment of his service-connected ulcerative colitis with steroids caused or aggravated his asthma, allergies or upper gastrointestinal disorder. The following paragraphs explain the errors or omissions in the October 2014 medical report. Asthma: Secondary Service Connection aggravation opinion: The examiner refers to the Veteran's upper GI disorder rather than his asthma disability. It appears that the examiner copied and pasted the wrong information into the section for the medical opinion regarding aggravation. Allergies: Secondary Service Connection causation opinion: The examiner states: "There is no medical reference to support any association between allergies and ulcerative colitis (UC). The treatment of allergy with corticosteroids is the same treatment as is used in ulcerative colitis. The former does not cause the latter . . . Therefore, I opine that the veteran's allergies were not related to or the result of SC ulcerative colitis or vice versa as these two entities are totally separate and unrelated conditions." However, the issue is not whether the treatment of allergies with corticosteroids causes UC. Rather, the issue is whether the treatment of UC with steroids causes allergies. Upper GI: Secondary Service Connection causation opinion. The examiner states: "The upper GI conditions are not temporally or causally related to military service or any treatment received during military service for ulcerative colitis." The examiner did not provide any rationale for the opinion offered as it relates to causation. As the examiner did not properly address the issues, the Board finds that a new opinion is necessary. Consequently, yet another remand to ensure compliance with the Board's remand directives is required. Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not met, the Board errs as a matter of law when it fails to ensure compliance, and further remand will be mandated). Also, in regard to the issue of a disability manifested by joint pain, the examiner opined that the Veteran had "diffuse clinical arthritic changes of joints of bilateral hands." He added that the Veteran did not have a diagnosis of fibromyalgia, evidenced by the lack of tenderness to palpation of the Veteran's 18 "tender points." He noted the Veteran's MRI results which indicated degenerative disc disease of the lumbar spine, degenerative changes of the hand, a calcaneal spur of the ankle, and multilevel minimal disc osteophyte of the cervical spine. He opined that there was "no objective clinical or radiological evidence to support a diagnosis of fibromyalgia or rheumatoid disorder. He further opined that the Veteran's osteoarthritis was "consistent with the normal progression of age and time." The examiner opined that the Veteran's widespread muscle and joint pain and weakness are less likely than not incurred in or caused by service. The examiner reasoned that there is no credible medical documentation of fibromyalgia or rheumatoid disorders; the Veteran's muscle strength is normal for a man aged 72 with osteoarthritic changes, time and aging and generalized deconditioning due to a sedentary lifestyle. "I opine that there is no temporal or causal nexus to conditions incurred in or originated during his period of miliary service." He also noted that the Veteran's first documented radiologic early arthritic changes were recorded on May 5, 2005 for joint pain in the left shoulder. "I opine that these changes would not have been present from 1968 until 2005 without progression as x-rays in CPRS show no degenerative joint disease in the preceding years." "The corticosteroid treatments for supposed ulcerative colitis while in service would not have caused the joint complaints and [degenerative joint disease] DJD as seen on the x-ray report [dated] May 6, 2005 and at my examination there is no credible medical documentation of fibromyalgia or rheumatoid disorder." The Board finds that the examiner's opinion is based on an inaccurate factual predicate and therefore inadequate. In that regard, the examiner does not address the Veteran's competent and consistent complaints of joint pain from 1968 until the present. There are private treatment records which corroborate the Veteran's complaints. The examiner does not address these lay statements or private treatment records. Also, the examiner noted that there was no radiologic evidence of degenerative joint disease until 2005. However, at the Veteran's January 2004 VA examination, the examiner noted that the Veteran had mild degenerative changes and joint disease of the thoracic and cervical spine, respectively. Based on the foregoing, the Board finds that a remand is necessary to address the flaws in the October 2014 medical report. Accordingly, the case is REMANDED for the following action: 1. Obtain an addendum opinion from the October 2014 VA examiner (or, if he/she is unavailable, an appropriate medical professional). The Veteran's electronic claims file, including a copy of this remand which fully details the errors and omissions of the prior opinions, must be made available to the examiner for review. If the examiner feels another examination is necessary, another examination should be scheduled. The examiner is requested to review the claims file and offer an opinion as to the following questions: Asthma a. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's asthma was incurred in or caused by service. b. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's asthma was caused by his service-connected ulcerative colitis, or its treatment with steroidal medication. Please provide a complete explanation for the opinion. c. Whether it is at least as likely as not that the Veteran's asthma is aggravated (i.e., permanently worsened) beyond the natural progress by his service-connected ulcerative colitis, or its treatment with steroidal medication. Please provide a complete explanation for the opinion. If aggravation is found, the examiner should address the following medical issues: i. the baseline manifestations of the Veteran's asthma found prior to aggravation; and ii. the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected ulcerative colitis, or its treatment thereof. Allergies a. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's allergies were incurred in or caused by service. b. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's allergies were caused by his service-connected ulcerative colitis, or its treatment with steroidal medication. Please provide a complete explanation for the opinion. c. Whether it is at least as likely as not that the Veteran's allergies are aggravated (i.e., permanently worsened) beyond the natural progress by his service-connected ulcerative colitis, or its treatment with steroidal medication. Please provide a complete explanation for the opinion. If aggravation is found, the examiner should address the following medical issues: i. the baseline manifestations of the Veteran's allergies found prior to aggravation; and ii. the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected ulcerative colitis or its treatment thereof. Upper Gastrointestinal Disorder a. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's GERD was incurred in or caused by service. b. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's GERD was caused by his service-connected ulcerative colitis, or its treatment with steroidal medication. Please provide a complete explanation for the opinion. c. Whether it is at least as likely as not that the Veteran's GERD is aggravated (i.e., permanently worsened) beyond the natural progress by his service-connected ulcerative colitis, or its treatment with steroidal medication. Please provide a complete explanation for the opinion. If aggravation is found, the examiner should address the following medical issues: i. the baseline manifestations of the Veteran's GERD found prior to aggravation; and ii. the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected ulcerative colitis or its treatment thereof. Note that the Veteran claims that his asthma, allergies and GERD are related to the steroid treatment he was prescribed for his service-connected ulcerative colitis. Specifically, the Veteran contends that the corticosteroid, Prednisone, affected his immune systems and caused him to develop other disabilities. The examiner is asked to address the Veteran's contentions and also the articles on corticosteroids that the Veteran submitted with his April 2005 Notice of Disagreement. The October 2014 examination report was inadequate because the examiner did not adequately address the impact if any, of the Veteran's documented chronic steroid use to treat his ulcerative colitis on the subsequent development of his asthma, allergies and upper gastrointestinal disorder. The examiner also noted that it was debatable as to whether the Veteran had a diagnosis of ulcerative colitis. However, that is not the issue before the examiner. Since there is a documented history steroid use to treat ulcerative colitis, the examiner is asked to opine as to the impact of such usage. Disability Manifested by Muscle and Joint Weakness a. Provide a diagnosis for the Veteran's complaints of muscle and joint pain and weakness. b. For each diagnosed muscle and joint disability, manifested by muscle and joint pain, opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's disability was incurred in or caused by service. The examiner is requested to address the Veteran's competent and credible reports of joint pain since service, including on his Report of Medical History. The examiner is also requested to address the private treatment records which indicate consistent treatment for joint pain. c. For each diagnosed muscle and joint disability, manifested by muscle and joint pain, opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's disability was caused by his service-connected ulcerative colitis, or its treatment with steroidal medication. Please provide a complete explanation for the opinion. d. For each diagnosed muscle and joint disability manifested by muscle and joint pain, opine whether it is at least as likely as not that the Veteran's disability is aggravated (i.e., permanently worsened) beyond the natural progress by his service-connected ulcerative colitis, or its treatment with steroidal medication. Please provide a complete explanation for the opinion. If aggravation is found, the examiner should address the following medical issues: i. the baseline manifestations of the Veteran's muscle and joint disability found prior to aggravation; and ii. the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected ulcerative colitis or its treatment thereof. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the clinician must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given the medical science and the known facts) or by a deficiency in the record or the clinician (i.e. additional facts are required, or the clinician does not have the needed knowledge or training). 2. Ensure the development outlined above has been accomplished, and then readjudicate the claims on appeal. If the benefit sought remain denied, issue a supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant 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 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). ______________________________________________ Bethany L. Buck Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs