Citation Nr: 1631453 Decision Date: 08/08/16 Archive Date: 08/12/16 DOCKET NO. 14-16 007 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to service connection for a bowel disorder, to include ulcerative colitis (claimed as intestinal condition, chronic diarrhea, and colectomy.) 2. Entitlement to service connection for a sleep disorder. 3. Entitlement to service connection for a mental disorder, to include cognitive disorder. 4. Entitlement to service connection for a brain tumor. 5. Entitlement to service connection for a seizure disorder. REPRESENTATION Veteran represented by: J. Michael Woods, Attorney ATTORNEY FOR THE BOARD Marcus J. Colicelli, Associate Counsel INTRODUCTION The Veteran honorably served on active duty in the United States Air Force from May 1997 through May 2001. The issues before the Board of Veterans Appeals (Board) are on appeal from November 2012 and November 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. In February 2013, VA received a properly signed and executed VA Form 21-22, in which the Veteran appointed the attorney listed on the front page of this decision as his representative; and the attorney accepted the appointment. In December 2014, the attorney submitted a letter to the Board declining representation of the Veteran in the present appeal. In January 2016, the Board sent a response to attorney with a copy to the Veteran outlining the procedure to make a motion to withdraw from representation under Rule 608 of the Board's Rules of Practice. The Veteran has not revoked his appointment of the attorney and the attorney has not made a motion to withdraw. The attorney subsequently submitted evidence and argument on the Veteran's behalf. Therefore, the attorney remains the recognized representative. See 38 C.F.R. §§ 14.631, 20.608 (2015). This appeal was processed using the VBMS paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record, as well as his Virtual VA paperless claims file. The issue of entitlement to service connection for a brain tumor, an acquired psychiatric disorder, and a seizure disorder are REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. FINDINGS OF FACT 1. The Veteran's, bowel disorder, ulcerative colitis, is due to active service. 2. A current sleep disability has not been demonstrated. CONCLUSIONS OF LAW 1. Service connection for a bowel disorder is established. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2015). 2. The criteria for service connection for a sleep disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Bowel Disorder VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, no further notice or assistance is required. Sleep Disorder Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and, (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the AOJ. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Letters sent to the Veteran in October 2012 and October 2013 explained the evidence necessary to substantiate a claim for service connection, as well as the respective duties of VA and the Veteran in obtaining evidence in support of the claim. The letters also notified the Veteran how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess v. Nicholson, 19 Vet. App. 473, 490-491 (2006). These letters were provided to the Veteran prior to the initial adjudication of his claims, pursuant to Pelegrini v. Principi, 18 Vet. App. 112 (2004). Thus, the duty to notify has been satisfied. VA has a duty to assist the Veteran in obtaining evidence necessary to substantiate his claim. The claims file has been thoroughly reviewed and contains the service treatment records, VA and private treatment records, Social Security Administration (SSA) records and lay evidence submitted by the Veteran. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Concerning the issue of a sleep disorder, and as will be explained below, the record before the Board does not indicate the existence of such a disorder. Hence, the Board determines that an examination is not needed to decide such claim, because the Veteran has not made a sufficient showing to entitle him to a medical examination in addition to the medical and other evidence already of record, concerning his claim for a sleep disorder. 38 U.S.C.A. § 5103A(d)(1)-(2) (West 2014). The Veteran has not made VA aware of any additional evidence that needs to be obtained in order to fairly decide the issue decided herein. He has been given ample opportunity to present evidence and argument in support of the sleep disorder claim. All relevant evidence necessary for an equitable disposition of the Veteran's appeal of this discrete issue has been obtained and the case is ready for appellate review. II. Service Connection Applicable Law Service connection will be granted for disability that results from injury or disease in the line of duty in active military service or, if pre-existing such service, was aggravated by in-service disease or injury. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a) (2015). In order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus, or link, between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be established for any disease diagnosed after military service, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during active military service. 38 C.F.R. § 3.303(d) (2015). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App 370, 374 (2002). When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as a headache, varicose veins, or tinnitus, the Veteran is not competent to provide evidence as to more complex medical questions, such as the etiology of psychiatric, respiratory, or orthopedic disorders. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Bowel Disorder Facts & Analysis A December 2008 VA Primary Care note reports that the Veteran had ulcerative colitis." The October 2012 VA examiner identified the Veteran's current diagnosis as ulcerative colitis and corresponding ileostomy in 2007. Accordingly, the Veteran has a current bowel disability; and the first element of service connection is satisfied. The Veteran asserts that his current ulcerative colitis symptoms began in service and have continued to the present. See October 2012 VA examination. As identified by the October 2012 VA examiner, the Veteran sought treatment for "diarrhea, nausea...loose... bloody stool" during active service in August 1998. Id.; see also August 1998 Evans Army Community Hospital note. As such, the in-service injury is shown; and the second element of service connection is met. What remains necessary to substantiate his claim is competent evidence of a nexus between the current ulcerative colitis and the gastrointestinal symptoms experienced in service. Regarding this question, the Veteran submitted a private medical opinion in July 2016 which posits that "it is highly likely his ulcerative colitis did start in service." See July 2016 Dr. H.S. opinion. This examiner interviewed the Veteran and reviewed the claims file, specifically identifying the September 2005 treatment record which established the diagnosis of ulcerative colitis. The examiner explained that the 2005 tissue report identified characteristics of ulcerative colitis which "are not formed as soon as one develops the disease." In light of the maturity of the ulcerative colitis identified in 2005, the examiner concluded that "the defects...point to a time frame when the Veteran was in service...because he had left...only four years before this test." The Board notes that the October 2012 VA examiner was not able to render an opinion regarding the relationship between the Veteran's ulcerative colitis and his service because "the chronicity of his symptoms...from 1998 to the diagnosis of UC in 2005, cannot be established via the records available." See October 2012 VA examination. The Board finds the lack of a VA opinion is not controlling as VA is not bound to accept any opinion from a VA examiner, private physician, or other source concerning the merits of a claim. Hayes v. Brown, 5 Vet App 60 (1993). The Board places great probative value on the July 2016 private opinion and on the Veteran's statements regarding the onset and continuity of symptomatology, as the Veteran is competent to report about what happened to him during service and his statements are found to be credible as they are consistent with the service treatment records. Resolving all doubt in favor of the Veteran, based on the foregoing, the Board finds that the Veteran's ulcerative colitis began during active service. Accordingly, the evidence is at least in equipoise. Consequently, the benefit-of-the-doubt rule applies, and service connection for ulcerative colitis is granted. See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. Sleep Disorder An essential requirement for any claim of service connection is that the Veteran establish that he currently has the disability claimed. Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (explaining that interpretation of 38 U.S.C.A. §§ 1110 and 1131 as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Service treatment records are silent as to any sleep-related complaints or illnesses. Post-service, records contain no evidence of a current sleep disorder. The October 2013 VA examiner concluded that "the Veteran does not meet criteria for a diagnosis of sleep issues at this time." An August 2011 neurology outpatient note shows the Veteran reported that he "is very tired currently on Keppra and Trileptal, reports medications are making him very sleepy and fatigued all the time...working odd shifts due to sleep deprivation." This does not show an underlying sleep disorder and the subsequent medical opinion is that the Veteran does not have such a disorder. Since the evidence, against a finding that there is a current disability; reasonable doubt does not arise and the claim is denied. ORDER Entitlement to service connection for a bowel disability, is granted. Entitlement to service connection for a sleep disability, is denied. REMAND Regarding the issues of seizure disorder and brain tumor, the October 2012 VA examiner was instructed to provide an opinion as to whether the ulcerative colitis medication, Asacol, caused or aggravated the seizure disorder or brain tumor. See October 2012 VA examination instructions. The examiner did provide an opinion that there "is no convincing evidence" that Asacol was found to cause seizures, and that the medication "certainly would not cause a brain tumor." The examiner further explained that the seizures and brain tumor "may be related" or "may" be a part of a separate neurological condition. The October 2012 VA opinion did not provide a rationale for the conclusions reached, and there is medical evidence of record which seemingly reflects a positive correlation between the Veteran's Asacol usage and seizure disorder. See April 2006 Grand Teton follow-up ("He was placed on Asacol and developed seizures."). Therefore, a new VA addendum opinion addressing the secondary relationship of the Veteran's now service-connected bowel disability to his claimed neurological disorders is necessary. The mental disability claim is inextricably intertwined with the claims for service connection for brain and seizure disorders, because the VA examiner opined that the Veteran had a cognitive disorder secondary to the brain tumor. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined). As such, adjudication of the acquired psychiatric disorder must be deferred until the required evidentiary development discussed above is completed. Accordingly, the case is REMANDED for the following actions: 1. Ask the examiner who provided the October 2012 VA neurological examination for his seizure disorder and brain tumor to review the claims file and provide an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent), that: a) a current brain tumor or seizure disorder are due to symptoms experienced during service; AND, b) or that any such disorder is proximately due to or aggravated (beyond natural progression) by medication for his service-connected ulcerative colitis, to include Asacol or other medication used in the treatment of ulcerative colitis. The examiner should specifically consider the treatment record reporting the onset of seizures after the Veteran began taking Asacol. The term "aggravated" in this context refers to a permanent worsening of the underlying condition. VA will not concede aggravation unless the baseline level of the non-service connected disability is established by medical evidence created before the onset of aggravation or by the earliest evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of non-service connected disease or disability. If it is not possible to provide a requested opinion without resort to speculation, the examiner should state why speculation would be required, whether the requested determination is beyond the scope of current medical knowledge, or beyond the scope of the examiner's medical knowledge; or there is additional evidence that, if obtained, would enable the necessary opinion to be provided. The examiner should provide reasons for the opinions. If the previous examiner is not available, another physician may provide the needed opinions. 3. If any benefit sought on appeal remains denied, issue a supplemental statement of the case; then return the case to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter or 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). ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs