Citation Nr: 1804151 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-09 723 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a gastrointestinal disability other than irritable bowel syndrome (IBS), including gastritis, to include as secondary to service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for an esophageal disability, including gastroesophageal reflux disease (GERD) and Barrett's esophagus, to include as secondary to service-connected PTSD. 3. Entitlement to service connection for hemorrhoids, to include as secondary to service-connected PTSD. 4. Entitlement to an initial disability rating in excess of 10 percent for radiculopathy of the left lower extremity. 5. Entitlement to service connection for radiculopathy of the right lower extremity. 6. Entitlement to an initial rating in excess of 20 percent for degenerative disc and joint disease of the lumbosacral spine. 7. Entitlement to service connection for a cervical spine disability. 8. Entitlement to service connection for chronic pain (claimed as pain syndrome), to include as secondary to service-connected PTSD. ATTORNEY FOR THE BOARD T. Minot, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from February 1968 to April 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The issues on appeal were remanded by the Board for evidentiary development in September 2015. Notably, in a March 2016 rating decision, the RO granted service connection for IBS. However, the record reflects, and the Veteran has asserted, that he has other disabling conditions involving his gastric system which he believes should be service-connected. See "Notice of Disagreement: Clarification" (August 2017). As such, the Board has recharacterized the issues on appeal as reflected on the title page. The Board notes that the Veteran submitted a notice of disagreement (NOD) in August 2017 contesting several issues addressed in August 2016 and September 2016 rating decisions. Because no Statement of the Case (SOC) has been issued for these claims, the Board must take jurisdiction of them for the limited purpose of remanding them to the Agency of Original Jurisdiction (AOJ) for issuance of an SOC. Manlincon v. West, 12 Vet. App. 238 (1999). The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND Gastrointestinal, Esophageal, and Hemorrhoid Conditions The Veteran contends that his gastrointestinal, esophageal, and hemorrhoid conditions are caused and/or aggravated by his service-connected PTSD. See Veteran's Supplemental Claim for Compensation (September 2011). Notably, the record contains conflicting medical evidence with respect to these claims. A VA medical opinion dated March 14, 2016 includes a finding that the Veteran's GERD and gastritis were as likely as not developed during service. This conclusion was based entirely on what the examiner deemed the Veteran's "credible description" of abdominal pain and heartburn shortly after leaving Vietnam; the examiner acknowledged that the Veteran's service treatment records were silent for gastrointestinal or esophageal symptoms. However, several days later the same examiner provided an addendum (dated March 29, 2016) reflecting the opposite opinion-that in fact it was less likely than not that the Veteran's GERD and gastritis developed during service. By way of rationale, the examiner again noted the lack of documentation of gastric distress in service but did not address the Veteran's lay reports which the examiner had previously deemed "credible." No explanation was given for this change. The March 29, 2016 addendum also noted that it was less likely than not that the Veteran's GERD or gastritis were caused by PTSD, citing a review of the "Medline database" and "Up-To-Date." Likewise, the Veteran's hemorrhoid condition was less likely than not caused by PTSD or service-connected IBS. (The examiner provided a positive opinion regarding a causal link between IBS and the Veteran's PTSD; as noted above, service connection for IBS has since been granted.) On review, the Board finds that a clarifying opinion is needed to ascertain the nature and etiology of the claimed gastrointestinal, esophageal, and hemorrhoid conditions. See 38 C.F.R. § 4.2; Barr v. Nicholson, 21 Vet. App. 303 (2007). Initially, the Board requests an explanation as to why the VA examiner changed his opinion with respect to the etiology of the Veteran's GERD and gastritis. In particular, an explanation is required as to why the Veteran's lay reports of gastric distress in service were accepted in the March 14 opinion but ignored in the March 29 opinion. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (holding that an examination was inadequate where the examiner ignored lay statements and relied solely on the absence of evidence in the service treatment records to provide a negative opinion). Moreover, the Board notes that both of the March 2016 opinions fail to address the Veteran's contention that his PTSD symptoms aggravate his gastrointestinal, esophageal, and hemorrhoid conditions. See, e.g., Statement in Support of Claim (September 2011) (stating that "[t]he severity of my medical conditions, especially my reflux/GERD, worsen as my PTSD symptoms worsen"). The Board notes that any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310(b). Finally, an opinion as to the etiology of the Veteran's Barrett's esophagus is required, as this condition was not addressed in either of the March 2016 opinions. Manlincon In an August 2017 rating decision, the RO (in pertinent part) granted service connection for radiculopathy of the left lower extremity, assigning a 10-percent initial rating for that disability, and denied service connection for radiculopathy of the right lower extremity and for chronic pain. Thereafter, in a September 2017 rating decision, the RO granted service connection for degenerative disc and joint disease of the lumbosacral spine, assigning a 20-percent initial rating for that disability, and denied service connection for degenerative arthritis of the cervical spine. In August 2017, the Veteran filed a timely NOD with respect to these issues. To date, however, no SOC has been issued. In light of the above, the Board must take jurisdiction over these issues for the limited purpose of remanding them for issuance of an SOC. See Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. Obtain outstanding VA medical records pertaining to the Veteran for the period from July 2016 to the present. 2. Furnish the Veteran and his representative an SOC regarding the issues of entitlement to increased initial ratings for radiculopathy of the left lower extremity and degenerative disc and joint disease of the lumbosacral spine; and entitlement to service connection for radiculopathy of the right lower extremity, cervical spine disability, and chronic pain (claimed as pain syndrome). Advise him of the time limit for perfecting the appeal of these claims and that the issues will NOT be returned to the Board for appellate consideration following the issuance of the SOC UNLESS he perfects his appeal WITH THE SUBMISSION OF A VA FORM 9. 3. Then, forward the claims file to the appropriate specialist for an addendum regarding the Veteran's claims for gastrointestinal, esophageal, and hemorrhoid conditions (other than IBS). After reviewing the entire claims file, particularly to include the VA examination reports of record and the March 14, 2016 and March 29, 2016 medical opinions, the examiner should opine as to the following: (a) Whether it is at least as likely as not (50-percent probability or more) that the Veteran's gastrointestinal and esophageal disorders (including but not limited to GERD, gastritis, and Barrett's esophagus), and hemorrhoid condition were incurred in service. Specifically address and attempt to reconcile the conflicting March 14, 2016 and March 29, 2016 VA medical opinions on this subject. In formulating the requested opinion/s, the examiner is asked to address in detail the Veteran's lay contentions regarding the etiology of these conditions. (b) Whether it is at least as likely as not (50-percent probability or more) that the Veteran's gastrointestinal, esophageal, and hemorrhoid conditions were caused or aggravated by his service-connected PTSD. Specifically address the Veteran's lay contentions that his gastric distress worsens when his PTSD symptoms worsen. See, e.g., Statement in Support of Claim (September 2011). 4. After completing all indicated development, the AOJ should readjudicate the claims on appeal. If any benefit sought remains denied, the RO should furnish to the Veteran and his representative a Supplemental Statement of the Case. 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). These claims 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. §§ 5109B, 7112 (2012). _________________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).