Citation Nr: 1802030	
Decision Date: 01/11/18    Archive Date: 01/23/18

DOCKET NO.  12-09 660	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Entitlement to service connection for rectum condition.

2.  Entitlement to service connection for a stomach condition.

3.  Entitlement to service connection for right hip condition.

4.  Entitlement to service for left hip condition.

5.  Entitlement to service connection for right knee condition.

6.  Entitlement to service connection for left knee condition.

7.  Entitlement to a rating higher than 20 percent for chronic low back pain.

8.  Entitlement to a total disability rating based on individual unemployability due to service connected disability (TDIU).

9.  Entitlement to special monthly pension.
10.  Entitlement to nonservice connected pension.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Bridgid D. Houbeck, Counsel


INTRODUCTION

The Veteran served on active duty from October 1984 to December 1991.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which denied service connection for stomach condition, rectum condition, right hip condition, left hip condition, right knee condition, and left knee condition; and increased rating for chronic low back pain; TDIU; nonservice connected pension; and special monthly pension.  In a February 2010 letter, the Veteran disagreed with the denial of all issues in that rating decision.  The RO issued a February 2012 statement of the case on the issues of service connection for stomach condition, rectum condition, right hip condition, left hip condition, right knee condition, and left knee condition; and increased rating for chronic low back pain; TDIU; and special monthly pension, but not nonservice connected pension.  The Veteran perfect his appeal on those issues with an April 2012 VA Form 9.

In an earlier March 2008 rating decision, the RO granted service connection for sinusitis; denied an increased rating for back disability including a temporary total evaluation; denied service connection for stomach condition, rectum condition, right hip condition, left hip condition, right knee condition, and left knee condition; and denied special monthly compensation based on aid and attendance/housebound. In a May 2008 letter, the Veteran noted that he had submitted additional relevant evidence that was not listed in that rating decision and he believed this evidence had not been considered by the RO in that rating decision.  The identified evidence was specifically listed in the February 2009 rating decision on appeal.

The issues of service connection for a stomach condition, bilateral hip conditions, and bilateral knee conditions; an increased rating for back disability; TDIU; special monthly pension; and nonservice connected pension are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The Veteran's rectum condition did not have onset during active service and was not caused by active service.


CONCLUSION OF LAW

The criteria for service connection for rectum condition have not all been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017).



REASONS AND BASES FOR FINDING AND CONCLUSION


With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See generally, 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159, 3.326 (2017).  

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.A. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017).  "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).  

A service connection claim must be accompanied by evidence which establishes that the claimant currently has the claimed disability.  See Degmetich v. Brown, 104 F. 3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992).  The current disability requirement is satisfied when a claimant has a disability at the time of filing the claim or during the pendency of that claim, even if the disability has since resolved.  McLain v. Nicholson, 21 Vet. App. 319 (2007); see also Romanowsky v. Shinseki, 26 Vet. App. 303 (2013) (to the effect that where a disease or disability is diagnosed proximate to the current appeal period, but not currently, the Board is required to determine whether the earlier diagnosis was inaccurate or the previously diagnosed condition had gone into remission).

In this case, the record includes colonoscopy reports from February 2003, July 2007, and March 2009 showing complaints of hematochezia and a family history of colon disease including Crohn's disease and colon cancer.  These colonoscopies revealed small polyps on the rectum, traverse colon, and sigmoid; a larger polyp on the descending colon; and an anal fissure.  No other tumors or masses were seen.  There was no evidence of acute colitis, diverticulitis, inflammatory bowel disease, malignancy or inflammatory bowel disease.

His service treatment records are silent for complaint of, treatment for, or a diagnosis of a rectum condition during his military service.  There are two records of treatment for diarrhea in July 1988 and August 1990, but these were associated with gastroenteritis and possible reflux respectively, not a rectal condition.  In his September 1991 Report of Medical History, the Veteran denied current symptoms or a history of intestinal trouble, piles (hemorrhoids), or rectal disease.  His September 1991 separation examination found his anus and rectum normal.

VA did not obtain a medical nexus opinion on this issue.  VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim.  See McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006).  Here, the Board finds no evidence beyond the Veteran's claim, suggesting that he has a current condition of the rectum, to include polyps and anal fissure, that is causally related to his military service or was ever present during his active service.  This is insufficient to warrant the need to provide a medical examination as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection.  See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010); see also Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010).  Moreover, the evidence does not show a relevant in-service disease or injury.  As such, an opinion is not necessary.

The Board finds that the Veteran is not competent to provide lay evidence of etiology in this case.  The first record of hematochezia was more than a decade after the Veteran's separation from service and the anal fissure was first observed several years later.  As such, a causal link between his current polyps and/or anal fissure and his military service cannot be determined based on readily observable lay symptoms.

For the reasons stated above, the Board finds that the preponderance of evidence is against the Veteran's claim of entitlement to service connection for a rectum condition and his appeal must be denied. There is no reasonable doubt to be resolved as to this issue.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Service connection for rectum condition is denied.


REMAND

In this case, the record does not include examinations for the claimed stomach, bilateral hip, or bilateral knee conditions

The record shows that the Veteran has a current diagnosis of gastroesophageal reflux disease (GERD).  The Board notes that GERD affects the esophagus and the stomach.  His service treatment records show complaints of occasional sharp abdominal pains in April 1987; treatment for epigastric pain in July 1987; treatment for diarrhea and gastroenteritis in July 1988; and complaints of diarrhea and occasional vomiting in August 1990 with a notation suggesting possible reflux.  This is sufficient to trigger VA's duty to provide an examination.  See 38 C.F.R. § 3.326; McLendon v. Nicholson, 20 Vet. App. 79 (2006).  As such, an examination and opinion as to whether the Veteran's current GERD is etiologically related to his in-service complaints should be obtained on remand.

With regard to his hip claims, the record shows complaints of right hip pain following a rollover motor vehicle accident in September 2007.  The Veteran is currently service connected for a back disability and has indicated that his current hip complaints are related to that disability.  To the extent that this post-service injury may be the onset of the Veteran's current complaints, the examiner is asked to specifically address whether any current hip condition, regardless of its origin, has been aggravated (chronically worsened beyond its natural progression) by the Veteran's service connected back disability.  An examination and opinion are necessary to determine if the Veteran's current hip complaints are etiologically related to his service connected back disability or have been aggravated by the back disability.  Although the existing medical evidence only shows right hip complaints, a VA examination must necessarily address both hips.  See Correia v. McDonald, 28 Vet. App. 158 (2016).  As such, new information regarding the left hip may be discovered during the course of this examination and so the claim for a left hip condition is inextricably intertwined with the right hip claim.  See Harris v. Derwinski, 1 Vet. App. 180 (1991).

The record shows that the Veteran has reported painful bilateral knees and he has been diagnosed with left knee lateral ligament laxity.  In a March 2008 buddy statement, M.C.P. stated that he witnessed the Veteran's knee problems while in service.  Additionally, the Veteran is currently service connected for a back disability.  An examination and opinion are necessary to determine if the Veteran's current knee complaints are etiologically related to his military service or to his service connected back disability.  The Board notes that the Veteran reported a knee injury following a post-service motor vehicle accident in September 2007.  Again, to the extent that this may have been the onset of the Veteran's current complaints, the examiner is asked to specifically address whether any current knee condition, regardless of its origin, has been aggravated (chronically worsened beyond its natural progression) by the Veteran's service connected back disability.

Finally, the September 2011 and May 2016 VA examinations and October 2011 and November 2011 disability based questionnaires (DBQs) of the Veteran's back are inadequate because they do not comply with 38 C.F.R. § 4.59.  Subsequent to theses VA examinations, the U.S. Court of Appeals for Veterans Claims, in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.  Thus, the Court's holding in Correia establishes requirements that must be met prior to finding that a VA examination is adequate, that have not been met in this case.  The examination reports do not meet these requirements.  In light of the fact that these examination reports do not fully satisfy the requirements of 38 C.F.R. § 4.59, VA must afford the Veteran an adequate examination of his back.

The claim of entitlement to TDIU is intertwined with the Veteran's pending increased rating and service connection claims, as the decisions on those claims may impact the adjudication of the TDIU claim.  Issues "inextricably intertwined" with an issue certified for appeal are to be identified and developed prior to appellate review.  Harris v. Derwinski, 1 Vet. App. 180 (1991).  Therefore, this claim must be remanded to the AOJ in accordance with the holding in Harris to allow the AOJ to fully develop and adjudicate it.

The Veteran has not been afforded a VA examination to address whether he is in need of regular aid and attendance due to his disabilities.  VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim.  38 C.F.R. § 3.159 (c)(4)(i).  A VA medical examination for aid and attendance and housebound status is therefore needed.

The Board notes that the Veteran is seeking this benefit based on disabilities that are the subject of this remand.  As such, if this examination establishes that the Veteran has a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352 (a) or is "permanently housebound," the outcome of his service connection claims would dictate whether he is entitled to special monthly pension (as currently on appeal) or special monthly compensation.

Finally, as noted in the introduction the Veteran was denied entitlement to nonservice connected pension in the February 2009 rating on appeal.  In his February 2010 notice of disagreement, the Veteran disagreed with the denial of all issues in that rating decision, which included the issue of nonservice connected pension.  The February 2012 statement of the case did not include this issue and no other statement of the case has yet been issued on this issue.  Regulation and case law require that the Board remand such cases for issuance of a statement of the case.  See 38 C.F.R. § 19.9 (c); see also Manlincon v. West, 12 Vet. App. 238 (1999). 

Accordingly, the case is REMANDED for the following action:

1.  Ensure that the Veteran I scheduled for a VA examination to with regard to his GERD or any other stomach condition found.  The claims file must be reviewed by the examiner and the examiner must note whether the claims file was reviewed.  All indicated studies should be conducted, and all findings reported in detail.

Provide a medical opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's GERD or other diagnosed stomach condition had its onset during active service or was caused by active service.

The examiner must support any and all opinions with a rationale.

If the examiner cannot provide the above opinion, the examiner is advised that he/she should explain why the requested opinion cannot be provided (i.e., because the limits of medical knowledge had been exhausted or because further information to assist in making the determination is needed, such as additional records and/or diagnostic studies.  If the examiner cannot provide the answer because further information is needed to assist in making the determination, all reasonable steps to obtain this missing information should be exhausted before concluding that the answer cannot be provided.

2.  Ensure that the Veteran is scheduled for a VA examination by an appropriately qualified examiner to with regard to any current hip condition.  The claims file must be reviewed by the examiner and the examiner must note whether the claims file was reviewed.  All indicated studies should be conducted, and all findings reported in detail.

a.  Identify all relevant diagnoses associated with the Veteran's complaints of bilateral hip pain. 

b.  For each condition identified, provide a medical opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any hip condition was (a)  caused by the Veteran's back disability or (b) chronically worsened beyond its natural progression (aggravated) by the Veteran's back disability.

In doing so, the examiner should address the September 2007 motor vehicle accident.

The examiner must support any and all opinions with a rationale.

If the examiner cannot provide any of the above opinions, the examiner is advised that he/she should explain why the requested opinion cannot be provided (i.e., because the limits of medical knowledge had been exhausted or because further information to assist in making the determination is needed, such as additional records and/or diagnostic studies. If the examiner cannot provide the answer because further information is needed to assist in making the determination, all reasonable steps to obtain this missing information should be exhausted before concluding that the answer cannot be provided.

3.  Ensure that the Veteran is scheduled for a VA examination by an appropriately qualified examiner to with regard to any current knee condition.  The claims file must be reviewed by the examiner and the examiner must note whether the claims file was reviewed.  All indicated studies should be conducted, and all findings reported in detail.

a.  Identify all relevant diagnoses associated with the Veteran's complaints of bilateral knee pain. 

b.  Provide a medical opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any knee condition began in or was otherwise causally related to his military service.

c.  Provide a medical opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any knee condition was (a) caused by the Veteran's back disability or (b) chronically worsened beyond its natural progression (aggravated) by the Veteran's back disability.

The examiner must support any and all opinions with a rationale.

If the examiner cannot provide any of the above opinions, the examiner is advised that he/she should explain why the requested opinion cannot be provided (i.e., because the limits of medical knowledge had been exhausted or because further information to assist in making the determination is needed, such as additional records and/or diagnostic studies. If the examiner cannot provide the answer because further information is needed to assist in making the determination, all reasonable steps to obtain this missing information should be exhausted before concluding that the answer cannot be provided.

4.  Ensure that the Veteran is scheduled for a VA lower back examination for the purpose of ascertaining the Veteran's current level of disability.  The claims file must be reviewed by the examiner and the examiner must note whether the claims file was reviewed.

All indicated studies should be conducted and all findings reported in detail.

Range of motion should be noted, and all functional losses due to pain, incoordination, fatigue, weakness, flare-ups, etc. should be equated to decrease in motion (beyond what is shown clinically).  The examiner is asked to consider all of the Veteran's subjective symptoms, including those present during flare-ups.  If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so.

In order to comply with the Court's recent precedential decision in Correia v. McDonald, 28 Vet. App. 158 (2016), the examiner must test the range of motion of the lumbar spine in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so.

Each opinion should be accompanied by a clear rationale consistent with the evidence of record.  If the examiner cannot respond without resorting to speculation, he or she should explain why a response would be speculative.

5.  Then, schedule the Veteran for a VA Aid and Attendance examination.

6.  After completion of the above and any additional development deemed necessary, readjudicate the claims of service connection for a stomach condition, bilateral hip conditions, and bilateral knee conditions an increased rating for back disability, TDIU, and SMP.  If any of the benefits sought are not granted, furnish to the Veteran and his representative a supplemental statement of the case and allow an appropriate opportunity to respond before returning the case to the Board.

7.  Furnish to the Veteran and his representative a statement of the case on the issue of nonservice connected pension.  Return that issue to the Board only if he timely perfects his appeal.

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.A. §§ 5109B, 7112 (2012).



______________________________________________
JAMES G. REINHART
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs