Citation Nr: 1752228 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 14-41 724 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for degenerative disc disease of the lumbar spine. 2. Entitlement to service connection for a diverticulitis and/or a chronic disability manifested by polyps in the colon, rectal bleeding, and blood in urine (to include) to include as due to an undiagnosed illness or service-connected disability. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Joshua Castillo, Associate Counsel INTRODUCTION The Veteran had active duty from January 1983 to August 1991, to include service in Southwest Asia during the Persian Gulf War from October 1990 to April 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran previously submitted a claim of entitlement to service connection for a back disability, which was denied in an October 1991 rating for lack of a current disability. The October 1991 rating decision became final because the Veteran did not submit a Notice of Disagreement or new evidence in connection with the claim within the appeal period. See 38 C.F.R. § 3.156(b). In connection with the Veteran's claim to reopen, a January 2012 VA examination report shows that the Veteran has a current diagnosis of degenerative disc disease of the lumbar spine. Thus, the Board finds that new and material evidence has been received sufficient to reopen his previously denied claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010); Justus v. Principi, 3 Vet. App. 510, 513 (1992). The issue of entitlement to service connection for a back disability has been recharacterized to comport with the evidence of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In August 2017, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. During the hearing, the Veteran made a motion alleging clear and unmistakable error (CUE) in the RO's October 1991 rating decision. See Simmons v. Principi, 17 Vet. App. 104 (2003); see also King v. Shinseki, 26 Vet. App. 433, 437 (2014) ("Because a motion to revise based on clear and unmistakable error requests revision of a prior final decision, rather than entitlement to a benefit based on a current disability, there can be no 'claim' for clear and unmistakable error.") (internal citation omitted). He asserted that the RO erroneously failed to conduct a VA examination to determine the nature and etiology of his reported back problems. As the Board cannot take original jurisdiction of this CUE motion, it is referred to the RO for appropriate action. See Canady v. Nicholson, 20 Vet. App. 393 (2006). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issue of entitlement to service connection for a diverticulitis and/or a chronic disability manifested by polyps in the colon, rectal bleeding, and blood in urine (to include) to include as due to an undiagnosed illness or service-connected disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Degenerative disc disease of the lumbar spine with right lower extremity and left lower extremity radiculopathy had its onset in service. CONCLUSION OF LAW Degenerative disc disease of the lumbar spine with right lower extremity and left lower extremity radiculopathy was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks service connection for a back disability, which he contends had onset in service. The Board finds that service connection for degenerative disc disease of the lumbar spine is warranted. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). The evidence shows that the Veteran has had back problems in and since service. See, e.g., Board hearing (August 2017). His service treatment records show multiple complaints of low back pain from 1988 to separation and that he was diagnosed with chronic lumbar strain, placed on physical profile for several weeks, and required to undergo physical therapy. See, e.g., Service treatment records (February 9, 1988; February 5, 1990; February 5, 1990; May 22, 1991). During the August 2017 Board hearing, the Veteran credibly reported that he continued medical treatment for his back disability immediately after service. The earliest post-service treatment notes of record confirm that the Veteran has had a history of back pain since 1991. See, e.g., VA treatment record (June 3, 2011). In January 2012, a VA examiner diagnosed degenerative disc disease of the lumbar spine with bilateral radiculopathy and opined that such was not related to exposure to environmental hazards in the Persian Gulf. The examiner did not, however, address whether the Veteran's current degenerative disc disease is related to his history of back problems in and since service. Here, because the Veteran is competent to report having back problems in and since service, which is consistent with the findings in the service treatment records, and given his current diagnosis of degenerative disc disease of the lumbar spine with right lower extremity and left lower extremity radiculopathy, the Board finds that service connection is warranted for this disability. 38 C.F.R. § 3.303(a). ORDER Service connection for degenerative disc disease of the lumbar spine with right lower extremity and left lower extremity radiculopathy is granted. REMAND The Veteran seeks entitlement to service connection for a diverticulitis and/or a chronic disability manifested by polyps in the colon, rectal bleeding, and blood in urine to include as due to an undiagnosed illness or as secondary to a service-connected disability. He contends that he has experienced episodes of diverticulitis in and since service. See, e.g., Substantive Appeal (December 4, 2014). During the August 2017 Board hearing, he testified that he was initially diagnosed with diverticulitis in 1991, immediately following separation from service, and has been hospitalized for diverticulitis numerous times since service. The earliest treatment note of record confirms that he had been hospitalized for diverticulitis eight times prior to 2011. See VA treatment record (June 3, 2011). In January 2012, a VA examiner diagnosed diverticulitis, but opined that such was not related to exposure to environmental hazards in the Persian Gulf. The examiner did not, however, address whether the Veteran's current diverticulitis is related to his longstanding history of diverticulitis. Additionally, the examiner noted that "most" of the Veteran's reported symptoms have been attributed to known diagnoses, but failed to explain whether any of the Veteran's reported gastrointestinal problems/symptoms, to include polyps in the colon, rectal bleeding, and blood in urine, are due to an undiagnosed illness. Accordingly, VA examination is needed to clarify the nature and etiology of the Veteran's current diverticulitis and gastrointestinal problems. Finally, during the August 2017 Board hearing, the Veteran identified outstanding VA treatment records from VA medical centers in South Texas, New Braunfels, Audie Murphy, and Crista Santa Rosa, dated from 1991 to 2011 and from 2014 to present. These records must be obtained upon remand. Accordingly, the case is REMANDED for the following action: 1. Obtain complete VA treatment records from 1991 to 2011 and from 2014 to present, to include from VA medical centers in South Texas, New Braunfels, Audie Murphy, and Crista Santa Rosa. If such records are unavailable, the Veteran's claims file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Notify the Veteran that he may submit lay statements from himself or others who have first-hand knowledge, and/or were contemporaneously informed of his diverticulitis and/or gastrointestinal problems. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. Schedule the Veteran for appropriate VA examinations to determine the nature and etiology of his diverticulitis and symptoms such as polyps in the colon, rectal bleeding, and blood in urine. The examiner is asked to review the pertinent evidence, including the Veteran's lay assertions regarding his symptomatology, and undertake any indicated studies. Then, based on the results of the examination, the examiner is asked to address each of the following questions: (a) Please state whether the symptoms of any claimed condition are attributable to a known clinical diagnosis. If the Veteran does not now have, but previously had any such condition, when did that condition resolve? (b) Is the Veteran's disability pattern consistent with: (1) a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, (2) a diagnosable chronic multisymptom illness with a partially explained etiology, or (3) a disease with a clear and specific etiology and diagnosis (e.g., diverticulitis)? (c) If, after examining the Veteran and reviewing the claims file, you determine that the Veteran's disability pattern is either (2) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (3) a disease with a clear and specific etiology and diagnosis, then please provide an expert opinion as to whether it is related to a presumed environmental exposures experienced by the Veteran during service in Southwest Asia. (d) Is it at least as likely as not that any diagnosed disorder, to include diverticulitis, had its onset directly during the Veteran's service or is otherwise causally related to any event or circumstance of his service, including environmental exposures during service in Southwest Asia during the Persian Gulf War? (e) If not directly related to service on the basis of questions (b)-(d), is any medical condition proximately due to, the result of, or caused by any service-connected disability(ies), to include irritable bowel syndrome? (f) If not caused by another medical condition, has any disorder been aggravated (made permanently worse or increased in severity) by any service-connected disability(ies), to include irritable bowel syndrome? If yes, was that increase in severity due to the natural progress of the disease? In answering all questions (a) to (f), please articulate the reasons underpinning your conclusions. That is, (1) identify what facts and information, whether found in the record or outside the record, support your opinion, and (2) explain how that evidence justifies your opinion. A report of the examination should be prepared and associated with the Veteran's VA claims file. 4. Finally, readjudicate the appeal. If the benefit sought remains denied, issue 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 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 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). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs