Citation Nr: 1757737 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 98-20 028 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial evaluation in excess of 30 percent for lactose intolerance/irritable bowel syndrome (IBS). 2. Entitlement to an evaluation in excess of 10 percent for right heel spur syndrome with plantar fasciitis. 3. Entitlement to an evaluation in excess of 10 percent for left heel spur syndrome with plantar fasciitis. 4. Entitlement to service connection for ulcerative colitis. 5. Entitlement to service connection for duodenal ulcer. 6. Entitlement to service connection for gastric ulcer. 7. Entitlement to service connection for diverticulitis. 8. Entitlement to service connection for gastritis, esophagitis, duodenitis, and hiatal hernia by esophagogastroduodenoscopy, to include as due to an undiagnosed illness. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, it is at least as likely as not that the Veteran's gastric ulcer is caused by medication taken to alleviate the symptoms of his service-connected right and left heel spurs with plantar fasciitis. CONCLUSION OF LAW The criteria for secondary service connection for gastric ulcer have been met. 38 U.S.C. §§ 1110, 1131, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1987 to September 1998. These matters come before the Board of Veterans' Appeals (Board) on appeal from September 1998 (lactose intolerance/IBS) and October 2011 (evaluation of right and left heel spurs with plantar fasciitis, service connection for ulcerative colitis, duodenal ulcer, gastric ulcer, diverticulitis, and gastritis, esophagitis, duodenitis and hiatal hernia) rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran testified before the undersigned Veterans Law Judge (VLJ) regarding lactose intolerance/IBS at a hearing in September 1999. A transcript of that hearing is of record. The procedural history of the lactose intolerance/IBS claim is lengthy, and this paragraph will only discuss particularly relevant documents. In November 2005, the Board denied an evaluation in excess of 10 percent that was appealed to the United States Court of Appeal for Veterans Claims (Court), and subsequently vacated in an October 2007 Order and remanded to the Board for development consistent with a Joint Motion for Remand (JMR). The Board granted an initial rating of 30 percent in a February 2009 decision. The Veteran appealed this February 2009 decision to the Court, and it was vacated and remanded pursuant to a JMR in a February 2010 Order. The Board remanded the claim in July 2010, June 2012, and November 2015. The other issues on appeal were also remanded in June 2012 and November 2015. Entitlement to service connection for gastritis, esophagitis, duodenitis, and hiatal hernia by esophagogastroduodenoscopy was also reopened by the November 2015 remand. The issues of entitlement to an initial evaluation in excess of 30 percent for lactose intolerance/IBS, entitlement to an evaluation in excess of 10 percent for right heel spur syndrome with plantar fasciitis, entitlement to an evaluation in excess of 10 percent for left heel spur syndrome with plantar fasciitis, entitlement to service connection for ulcerative colitis, entitlement to service connection for duodenal ulcer, entitlement to service connection for diverticulitis, and entitlement to service connection for gastritis, esophagitis, duodenitis, and hiatal hernia by esophagogastroduodenoscopy are addressed in the REMAND portion of the decision below and are REMANDED to the agency of original jurisdiction (AOJ). Gastric Ulcer VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. The Board is granting the claim before it in full. Accordingly, any error committed with respect to either the duty to notify or the duty to assist is harmless and will not be further discussed. The Veteran contends that his gastric ulcer is due to taking a Pyridostigmine Bromide (PB) pill in service or as secondary to his service-connected lactose intolerance/IBS. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). A disability may be service connected on a secondary basis if it is proximately due to or the result of a service-connected disease or injury; or, if it is aggravated beyond its natural progress by a service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310(a), (b). The question for the Board is whether the Veteran's gastric ulcer is related to service or to a service-connected disability. The Board finds that the record does not demonstrate that it is at least as likely as not that the Veteran's gastric ulcer is etiologically related to service. However, resolving doubt in favor of the Veteran, it is at least as likely as not that the Veteran's gastric ulcer is caused by medication taken to treat his service-connected right and left heel spurs with plantar fasciitis. Clinical reports of record establish current disability of a gastric ulcer. Service treatment records are negative for complaints or findings relative to a gastric ulcer. Additionally, no competent clinical evidence of record establishes that a gastric ulcer was demonstrated to a compensable degree within one year of separation from service, or that the Veteran's gastric ulcer is otherwise etiologically related to service. 38 C.F.R. §§ 3.303, 3.307, 3.309(a). The first diagnosis of a gastric ulcer was following an endoscopy in October 1999, and a gastric ulcer was again demonstrated in 2002. The length of time between service and initial demonstration of the disability at issue is for consideration, while not dispositive. In view of the foregoing, the Board finds that service connection for a gastric ulcer on a direct-incurrence basis is not warranted. The July 2017 examiner found that that the cause of the gastric ulcer is likely secondary to the medication Diclofenac. This is consistent with an August 2014 VA treatment note finding that acute gastric ulcer is likely secondary to Diclofenac. The examiner did not consider the relationship between Diclofenac and the Veteran's service-connected disabilities. There is contradictory evidence regarding the reason the Veteran was taking this medication. An April 2014 treatment note describes the plan for back pain as Diclofenac. The Veteran is not service connected for a back disability. However, the August 2011 VA examination regarding the Veteran's right and left heel spurs with plantar fasciitis noted that the Veteran reported relief from foot pain with Diclofenac, and listed Diclofenac as the medication used to treat these service-connected disabilities. An August 2014 VA treatment note relating Diclofenac to the gastric ulcer noted that the Veteran states he cannot walk if he does not take Diclofenac for his feet. The Board acknowledges that Diclofenac may treat both nonservice-connected back pain and service-connected foot pain. However, the Board is to resolve doubt in the Veteran's favor, and the August 2011 examiner specifically found Diclofenac was used to treat the service-connected foot disabilities. Therefore, the Board finds that it is at least as likely as not that medication for the Veteran's service-connected left and right heel spurs with plantar fasciitis caused the gastric ulcer, meaning that secondary service connection is warranted. ORDER Entitlement to service connection for a gastric ulcer as secondary to medication for service-connected left and right heel spurs with plantar fasciitis is granted. REMAND The November 2015 remand instructed the examiner to determine whether the Veteran's reported gastrointestinal and digestive symptoms (which are separate and distinct from the service-connected lactose intolerance/IBS) are due to a diagnosed disease or disability. If the answer was yes, then the examiner was to provide an opinion regarding whether the underlying disease or disability was caused by service or was caused or aggravated by any of the Veteran's service-connected disabilities. If the Veteran's symptoms cannot be attributed to a known diagnosis, the examiner was to so note and provide an opinion as to whether the condition is attributable to an undiagnosed illness, and determine whether the Veteran has a medically unexplained chronic multi-symptom illness. Unfortunately, the examiner did not follow this instructions as laid out, and instead discussed the general causes of the assorted claimed disabilities, and noting that the service-connected condition of IBS/lactose intolerance has not aggravated several of these conditions, and finding that the listed conditions are not attributed to an undiagnosed illness. There is no discussion of the Veteran's contention that his gastrointestinal problems are due to taking a Pyridostigmine Bromide (PB) pill in service. Upon remand, a supplemental opinion should be obtained that provides the requested information regarding the Veteran's gastrointestinal symptoms and disabilities. With regard to the Veteran's lactose intolerance/IBS, the June 2012 remand notes that the evaluation of the criteria for evaluation of the digestive system indicates that "[a] single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such evaluation." 38 C.F.R. § 4.114. The Veteran still seeks service connection for additional digestive disabilities, which are remanded herein, and the outcome of these claims may impact the rating assigned for the Veteran's lactose intolerance/IBS. Therefore, the issues are inextricably intertwined, and the matter of the appropriate rating for lactose intolerance/IBS must be remanded. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Unfortunately, additional remand is also required regarding the Veteran's right and left heel spurs with plantar fasciitis. An April 2017 notation in the Veteran's VA medical records indicate that he was sent for private treatment through the Veterans Choice program from Coastal Foot Center for his heel spurs, with a date of service in December 2016. The Board has notice of private medical records which are relevant to the current severity of the Veteran's heel spurs but are not of record. Therefore, these records must be requested before a decision can be made. Additionally, the July 2017 examination diagnosed nonservice-connected pes planus (flat foot) as well as the service-connected heel spurs and plantar fasciitis. Foot pain is a symptom of both of these diagnoses. Upon remand, an examination should be scheduled in which the examiner attempts to distinguish the symptoms of service-connected heel spurs and plantar fasciitis, and the symptoms of non-service-connected pes planus. The claims folder should also be updated to include VA treatment records compiled since September 8, 2017. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain all records of the Veteran's treatment from the Fayetteville VA Medical Center and all associated outpatient clinics including the Wilmington Health Care Center dated from September 8, 2017 to the present. If any records cannot be obtained after reasonable efforts have been made, notify the Veteran and allow him the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). All attempts to obtain the records must be documented in the claims file. 2. Request that the Veteran provide authorization to obtain treatment records from Coastal Foot Center, as noted in an April 2017 VA medical record. The AOJ must make two attempts to obtain these records unless the first attempt demonstrates that further attempts would be futile. If no records are obtained, the AOJ must (1) inform the Appellant of the records that were not obtained (2) tell the Appellant what steps were taken to obtain them, and (3) tell the Appellant that the claim will be adjudicated without the records but that if he later submits them, the claim may be reconsidered. See 38 U.S.C. § 5103A(b)(2)(B). 3. Schedule the Veteran for a VA examination to determine the current nature and severity of his right and left heel spurs with plantar fasciitis. Describe all symptoms and manifestations of the Veteran's heel spurs with plantar fasciitis, and address whether these symptoms can be described as moderate, moderately severe, or severe. The examiner is asked to distinguish which of the Veteran's symptoms are due to non-service-connected pes planus, and which are due to service-connected heel spurs with plantar fasciitis. If the examiner is unable to distinguish the symptoms of the non-service-connected disability from those of the service-connected disability, he or she should so state. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of all gastrointestinal and digestive disabilities and symptoms (to include ulcerative colitis, duodenal ulcer, diverticulitis, gastritis, esophagitis, duodenitis, and hiatal hernia). After reviewing the claims file and performing any necessary tests, the examiner is asked to provide the following opinions: i) Are the Veteran's reported gastrointestinal and digestive symptoms, which are separate and distinct from his service-connected lactose intolerance/IBS and gastric ulcer, due to a diagnosed disease or disability? ii) If the answer to question (i) is in the affirmative, then the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that any underlying disease or disability productive of gastrointestinal and digestive symptoms, which are separate and distinct from the service-connected lactose intolerance/IBS and gastric ulcer, is caused by service, to include taking a Pyridostigimine Bromide (PB) pill? The examiner is advised that the Veteran indicated that he did take such a pill in a July 1995 questionnaire contained in his service treatment records (STRs). The answer to this question should consider the disabilities of ulcerative colitis, duodenal ulcer, diverticulitis, and gastritis, esophagitis, duodenitis, and hiatal hernia. iii) If the answer to question (i) is in the affirmative, then the examiner should also provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any underlying disease or disability productive of gastrointestinal and digestive symptoms, which are separate and distinct from the service-connected lactose intolerance/IBS and gastric ulcer, is caused or aggravated by any of the Veteran's service-connected disabilities, to include lactose intolerance/IBS. Aggravated means worsened beyond the natural progression of the disease. The answer to this question should consider the disabilities of ulcerative colitis, duodenal ulcer, diverticulitis, and gastritis, esophagitis, duodenitis, and hiatal hernia. iv) If any reported gastrointestinal and digestive symptoms cannot be attributed to a known diagnosis, including the service-connected lactose intolerance/IBS and/or gastric ulcer, then the examiner should so note and provide an opinion as to whether it is at least as likely as not that the symptom or symptoms are attributable to an undiagnosed illness. The examiner should also determine whether the Veteran has a medically unexplained chronic multi-symptom illness. Complete rationale must be provided for each opinion proffered. 5. After completing the above development, readjudicate the issues on appeal. If any benefit sought remains denied, issue a supplemental statement of the case and return the case to the Board. 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). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD A. Budd, Counsel Copy mailed to: Virginia A. Girard-Brady, Attorney Department of Veterans Affairs