Citation Nr: 1800110 Decision Date: 01/03/18 Archive Date: 01/19/18 DOCKET NO. 16-47 803 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a sinus disorder. 2. Entitlement to service connection for headaches. 3. Entitlement to service connection for hemorrhoids. 4. Entitlement to an initial compensable rating for service-connected irritable bowel syndrome (IBS). 5. Entitlement to service connection for cyst on spleen. 6. Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD). 7. Entitlement to service connection for a back disorder. 8. Entitlement to service connection for a dental disorder/loss of 3 front teeth/jaw teeth. 9. Entitlement to service connection for anemia/sickle cell. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION The Veteran served on active duty from October 1980 to September 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in October 2013, January 2016, and April 2016 by a Department of Veterans Affairs (VA) Regional Office (RO). The October 2013 rating decision denied, in pertinent part, service connection for back problems, PTSD, and dental/loss of teeth. The January 2016 rating decision granted, in pertinent part, service connection for irritable bowel syndrome with a 0 percent rating effective July 28, 2015, and confirmed and continued a prior denial of service connection for headaches. The April 2016 rating decision denied, in pertinent part, service connection for anemia, hemorrhoids, and sinuses, and denied reopening a claim for service connection for cyst on spleen. In August 2017, the Veteran and his spouse testified during a videoconference Board Hearing before the undersigned Veterans Law Judge (VLJ). During the hearing, the VLJ granted a motion to advance the case on the docket based on the Veteran's financial hardship. The Board notes that the claim for service connection for cyst on spleen was initially denied by the RO in October 2013 on the grounds that there was no evidence of the claimed disorder; however, VA medical records associated with the claims file in 2016 contain the result of a CT scan done by VA in November 2012, which found calcified granuloma of the spleen. Although these records were not physically in the claims file at the time of the October 2013 rating decision; they were constructively of record. See Bell v. Derwinski, 2 Vet. App. 611 (1992). New and material evidence is therefore not needed to consider this claim on the merits. During his Board Hearing the Veteran indicated that he was also requesting treatment from VA for his dental condition. This aspect of the Veteran's claim for a dental disorder is referred to the appropriate VA Medical Center for appropriate action as that aspect of VA adjudicates these types of claims. 38 C.F.R. § 19.9(b). The decision below addresses the issues of service connection for a sinus disorder, headaches, and hemorrhoids, and the appeal for a higher rating for IBS. The remaining claims are addressed in the REMAND portion of the decision below and are REMANDED to the RO. FINDINGS OF FACT 1. The Veteran's current sinus and headaches disorders began during active duty service. 2. The Veteran's hemorrhoids disorder is not related to service. 3. The Veteran's service-connected IBS has been productive of severe impairment throughout the appeal period. CONCLUSIONS OF LAW 1. The criteria for service connection for a chronic sinus disorder are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for service connection for headaches are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 3. The criteria for service connection for hemorrhoids are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 4. The criteria for an initial disability rating of 30 percent for IBS, effective from July 28, 2015, are met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.114, Diagnostic Code (DC) 7319 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks service connection for his current sinus disorder, headaches, and hemorrhoids; all of which he contends began during service. He is also requesting a higher initial rating for his service-connected IBS. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). I. Service Connection Claims Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. "To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the veteran. 38 U.S.C. § 5107(b); 38 U.S.C. § 3.102. Facts and Analysis During his August 2017 Board Hearing, the Veteran testified that he was treated many, many times during service for sinus complaints. See Board Hearing Transcript, p. 11. He also testified that he suffered from headaches during service, which he treated with aspirin. Transcript, p. 10. See also Veteran's report during his September 2013 VA headaches examination of headaches for the past 15-20 years, for which he took aspirin. Service treatment records (STRs) confirm that the Veteran had treatment for sinus problems during service, diagnosed variously as rhinitis, rhinorrhea, hay fever, and rhinitis medicamentosa; and there is no evidence of a sinus disorder prior to his entry into service. STRs also confirm that the Veteran suffered from associated headaches, for which he took aspirin. See STRs dated July 5, 1982 and March 4, 1988. The evidence also shows that the Veteran continues to suffer from sinus trouble and headaches. VA medical records advise of "chronic ethmoidal sinusitis." See, e.g., VA Active Problems List dated in December 2015. And during his August 2017 Board Hearing the Veteran testified that he still gets headaches and still takes aspirin for them. Board Hearing Transcript, p. 10. The weight of the evidence thus favors these claims as the Veteran appears to have the same problems that arose during service. This is particularly so when reasonable doubt is resolved in his favor. See 38 U.S.C. § 5107(b); 3.102. Service connection for a sinus disorder and headaches is therefore warranted. As for the hemorrhoids claim, the evidence confirms that the Veteran currently has hemorrhoids (see, e.g., VA emergency room records dated in December 2013); however, contrary to the Veteran's assertion of hemorrhoids during service (see Board Hearing Transcript, p. 10), STRs, of which there are many, contain no record of any complaints, diagnosis, or treatment for hemorrhoids. The Veteran's allegation of hemorrhoids during service is therefore not credible because there is an evidentiary foundation that such would be included in the STRs if they occurred. There is also no medical opinion evidence that relates the Veteran's post-service hemorrhoids back to service, and no factual foundation has been established to show that the Veteran, who contends that his current hemorrhoids are related to c-rations he consumed during service, is qualified through specialized knowledge, education, training, or experience to offer a medical diagnosis or opinion; particularly, where, as here, the opinion refers to nutritional/internal causation-a complex medical question. The Board does not find that obtaining additional medical opinion evidence is warranted because an in-service injury, disease or event has not been established for this claim and there is no indication that the current hemorrhoids are related to service. The Board therefore finds that the Veteran's opinion as to an association between his current hemorrhoids disorder and service is beyond the Veteran's lay capacity and is of no probative weight. The preponderance of the evidence is thus against the claim and the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Therefore, service connection for hemorrhoids is not warranted. II. Increased Rating Claim In a rating decision dated in January 2016, the RO granted service connection for IBS with a noncompensable rating effective July 28, 2015. The Veteran has appealed the assigned rating. Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Veteran's IBS has been rated under the provisions of DC 7319 throughout the appeal period for "irritable colon syndrome." This DC provides that a noncompensable (zero percent) rating for mild disturbances of bowel function with occasional episodes of abdominal distress; a 10 percent rating for moderate disturbance manifested by frequent episodes of bowel disturbances with abdominal distress; and a maximum 30 percent rating is assigned when there is severe diarrhea, or alternating diarrhea and constipation with more or less constant abdominal distress. 38 C.F.R. § 4.114. 38 C.F.R. § 4.114 prohibits simultaneous evaluations under DC 7301 to 7329, inclusive; DC 7331 and 7342; and DC 7345 to 7348. Facts and Analysis During his August 2017 Board Hearing the Veteran testified that his IBS "is still a problem, but it's being controlled to a certain degree." He elaborated that he becomes constipated and has loose diarrhea if he does not take his medications. Transcript, pp. 12-13. Medical records dated throughout the appeal period confirm that the Veteran's IBS has been productive of alternating bouts of diarrhea and constipation with more or less constant abdominal distress. See VA medical records dating from July 2015, advising of chronic abdominal pain and "severe gastroparesis." The Board accordingly finds that the Veteran's IBS approximates severe impairment. This is particularly so when reasonable doubt is resolved in the Veteran's favor. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Additionally, it has been held that the ameliorative effects of medication cannot be considered under DC 7913. See Jones v. Shinseki, 26 Vet. App. 56, 62 (2012). Therefore, the maximum schedular rating of 30 percent for IBS is warranted since the effective date of service connection. ORDER Service connection for a chronic sinus disorder is granted. Service connection for headaches is granted. Service connection for hemorrhoids is denied. An initial disability rating of 30 percent for IBS, effective July 28, 2015, is granted; subject to the law and regulations governing the payment of monetary benefits. REMAND In addition to the above, the Veteran seeks service connection for a spleen disorder, a psychiatric disorder, a back disorder, tooth loss/a dental disorder, and anemia. For the reasons that follow, additional development of these claims is warranted. Spleen In October 2013, the RO denied service connection for a spleen disorder on the grounds of condition not found; however, VA medical records appear to show an abnormality. See November 2012 CT scan findings of "calcified granuloma of the spleen." Also, during his August 2017 Board Hearing, this Persian Gulf War Veteran posited that his spleen problem may be due to his exposure to environmental contaminants/hazards in the Persian Gulf theater. See Board Hearing Transcript, p. 12. In accordance with McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Veteran should be afforded a VA examination. Psychiatric The Veteran reports that he was hospitalized due to psychiatric complaints for three weeks while in Wiesbaden, Germany (see Veteran's January 2016 notice of disagreement and other statements), and VA medical records dated in March 2016 show that he is presently being treated for generalized anxiety disorder and dysthymic disorder. See also November 2015 VA psychiatric examination, which relates a diagnosis unspecified anxiety disorder to include insomnia. However, there are no in-service mental health records in the claims file. Bearing in mind that inpatient and mental health (clinical) records are often kept separately from other STRs (see VBA Manual, M21-I.1.C.1.b. and M21-I.III.iii.2.A.1.a.-c. (2017)), a request should specifically be made for the Veteran's active duty inpatient mental health records. 38 C.F.R. § 3.159(c)(2). The Veteran should then be afforded a new VA examination. Back During his August 2017 Board Hearing, the Veteran testified that he wrenched his back "jumping off a 5 ton" while in the Persian Gulf (see Transcript, pp. 7-8), and that he continues to suffer from back problems. On VA examination in September 2013, the examiner indicated that there was no objective evidence of a chronic back condition related to service; however, STRs confirm that the Veteran sustained a lumbosacral strain in 1987; and VA medical records, which were associated with the claims file after the September 2013 examination, reflect that the Veteran currently has a chronic back disorder, including degenerative disease. As such, the Veteran should be afforded a new VA examination on remand. Dental Specific provisions apply to dental claims. Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses and periodontal disease are not compensable disabilities. See 38 C.F.R. § 3.381. However, a dental condition manifested by bone loss can be potentially service connected if as a result of trauma or disease that may be awarded compensable disability ratings. See 38 C.F.R. § 4.150, DC 9900-9916, Note to Code 9913. The Veteran seeks service connection for a dental disorder, which he contends relates back to his service in the Persian Gulf. He specifically contends that his teeth decay stems from his exposure to oil fires/environment hazards in the Persian Gulf. Board Hearing Transcript, p. 3. Military records confirm that he served in the Persian Gulf from December 1990 to May 1991. As the Veteran has not been afforded a VA examination regarding this claim, one should be done on remand. Anemia During his 2017 Board Hearing, the Veteran testified that military providers suspected that he was anemic during service (see Board Hearing Transcript, p. 14); and VA medical records show that the Veteran "has microcytic anemia." See VA medical records dated in February 2012. Remand for a VA examination is warranted. Accordingly, these issues are REMANDED for the following actions: 1. Request all of the Veteran's active duty clinical/inpatient mental health treatment records; especially, records compiled during the Veteran's 6 year service in Wiesbaden, Germany. Associate these records with the claims file. 2. Schedule the Veteran for a VA examination regarding the issue of service connection for a spleen disorder/cyst on spleen. The claims file, especially active duty laboratory records, must be reviewed. All indicated tests should be done, and all findings reported in detail. The examiner is then requested to opine as to whether it is at least as likely as not (50 percent or greater probability) that a current spleen disorder (including that revealed by CT scan in November 2012) began during service or is related to any incident of his service, including the Veteran's exposure to environmental hazards in the Persian Gulf. 3. Also, schedule the Veteran for a new VA psychiatric examination regarding the Veteran's claim of service connection for a psychiatric disorder, to include PTSD. The claims file must be reviewed. For each psychiatric disorder found on examination or at some other time during the appeal period, opine as to whether it is at least as likely as not (50 percent or greater probability) that the disorder began during service, or is related to any incident of the Veteran's service, including the Veteran's service in the Persian Gulf. 4. Also, schedule the Veteran for a new VA examination regarding the issue of service connection for a low back disorder. The claims file must be reviewed. All indicated tests should be done, and all findings reported in detail. The examiner is then requested to opine, for each low back disorder found on examination and at some other time during the appeal period, whether it is at least as likely as not (50 percent or greater probability) that the disorder began during service, or in the year after service, or is related to any incident of active duty service, including the March 1987 lumbosacral strain documented in STRs. 5. Schedule the Veteran for a VA dental examination. The claims file, especially active duty dental records, must be reviewed. All indicated tests should be done, and all findings reported in detail. The examiner is then specifically requested to determine whether the Veteran has a dental condition other than periodontal disease/caries/loss of tooth without bones loss that is manifested by bone loss, such as from osteomyelitis. If so, the examiner should then provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the bone loss is related to service, including the Veteran's exposure to environmental hazards in the Persian Gulf. 6. Schedule the Veteran for a VA examination regarding the issue of service connection for anemia. The claims file, especially active duty laboratory records, must be reviewed. All indicated tests should be done, and all findings reported in detail. The examiner is then requested to opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's anemia began during service or is related to any incident of his service, including the Veteran's exposure to environmental hazards in the Persian Gulf or some other incident of his Persian Gulf War service. 7. After completion of the above and any other necessary development, readjudicate the claims remaining on appeal. If any 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 matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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. §§ 5109B, 7112. ______________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs