Citation Nr: 18147926 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 18-13 083 DATE: November 6, 2018 ORDER New and material evidence having been received, the claim of service connection for irritable bowel syndrome (IBS) is reopened and to that extent the claim is granted. REMANDED Entitlement to service connection for a thoracolumbar spine disorder, to include mild thoracic scoliosis, and degenerative joint disease and bilateral spondylolysis at L5-S1, is remanded. Entitlement to service connection for IBS is remanded. FINDINGS OF FACT 1. The Agency of Original Jurisdiction (AOJ) last denied service connection for IBS in an unappealed September 1993 rating decision. 2. Evidence received since the September 1993 rating decision relates to unestablished facts necessary to substantiate the claim of service connection IBS. CONCLUSIONS OF LAW 1. The September 1993 rating decision that denied service connection for IBS is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 2. The criteria for reopening the claim of service connection for IBS are met. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from May 1989 to May 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office. Historically, the AOJ denied service connection for IBS in a June 1993 rating decision; the AOJ again denied service connection for IBS in a September 1993 rating decision. The AOJ denied service connection for IBS in the September 1993 rating decision on the basis that, although there was evidence of treatment for IBS and stomach problems in her service treatment records, there was no evidence of a current chronic disability associated with the symptoms noted during service. The Veteran was informed of that decision in a September 1993 notification letter. The Veteran did not submit a notice of disagreement or any new and material evidence with respect to her IBS claim within one year of that September 1993 notification letter. As no notice of disagreement or new and material evidence were received respecting those claims within one year of the September 1993 notification letter, the September 1993 rating decision is final. See 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.1103; Buie v. Shinseki, 24 Vet. App. 242, 252 (2010). New and material evidence is therefore required to reopen the claim of service connection for IBS. See 38 U.S.C. § 5108; Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); 38 C.F.R. § 3.156. Evidence submitted since the last final denial includes lay and medical evidence, including: post service treatment records from 2013, 2014, and 2016, as well as a January 2017 VA examination report, and lay statements of the Veteran contained in her July 2017 Notice of Disagreement and her February 2018 Form 9. The Board reflects that the Veteran was diagnosed with IBS in the January 2017 VA examination. Additionally, during the pendency of the appeal period, she was awarded service connection for gastroesophageal reflux disease (GERD) and gastritis in the February 2017 rating decision. In her February 2018 substantive appeal, VA Form 9, the Veteran asserted that her IBS was etiologically related to her service-connected GERD. Finally, she submitted an article related to IBS and GERD in February 2018. Based on the foregoing evidence, the Board must find that the evidence received since the September 1993 rating decision raises a reasonable possibility of substantiating the IBS claim and also raises the need to obtain a medical examination and opinion in this case. The IBS claim is therefore reopened at this time. See 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (medical evidence which indicates that a medical opinion is warranted is sufficient to reopen a claim). REASONS FOR REMAND Respecting the IBS claim, as noted above, the Veteran has asserted that her IBS is related to active service. The Board reflects that the Veteran’ service treatment records indicate that she was diagnosed with IBS during military service in March 1993, with symptoms lasting 2 days. The Veteran underwent a VA examination in January 2017, at which time she was diagnosed with IBS, although the examination noted that the Veteran had “near normal bowel function” during military service and opined that the Veteran’s treatment during military service was more likely due to her stomach issues rather than IBS. The examiner, however, does not provide a rationale for that conclusion in his opinion. Moreover, as noted above, she has also asserted that it is secondary to her service-connected GERD and provided an article related to that theory of entitlement in February 2018. The January 2017 VA examiner did not address any secondary service connection theory of entitlement in his opinion. Accordingly, in light of the above deficiencies, a remand is necessary in order to for an adequate medical opinion to be obtained in this case. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise). Similarly, respecting the lumbar spine claim, the Veteran has a current diagnosis of degenerative joint disease and bilateral spondylolysis at L5-S1 noted during the appeal period. A review of the Veteran’s service treatment records indicate that the December 1988 enlistment examiner noted mild thoracic scoliosis on entry; the January 2017 VA examiner did not address whether such was aggravated during military service. Additionally, the Veteran’s service treatment records also document two reported two falls onto her back in basic training; one of these falls is described in a May 1993 record as a “heat casualty.” Also, a flight surgeon noted possible spondylolysis at L5 in an April 1990 record. In addition, an injury to the Veteran’s tailbone was noted in January 1991. The Board reflects that the January 2017 VA examiner failed to adequate address these injuries and notations found in the service treatment records with respect to his opinion that the Veteran’s current lumbar spine disorder was not related to military service. Thus, a remand of that issue is also warranted in order to obtain an adequate medical opinion in this case. See Id. On remand, the Board also finds that any outstanding VA treatment records should also be obtained. See 38 U.S.C. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016) (where the Veteran “sufficiently identifies” other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information); Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Ask the Veteran to identify any VA or private treatment that she may have had for her IBS and lumbar spine disorders, which is not already of record. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that she can make an attempt to obtain those records on her own behalf. 2. Ensure that the Veteran is scheduled for a VA examination with an appropriate examiner that has not previously participated in this case in order to determine whether the Veteran’s thoracolumbar spine disorders are related to her military service. The claims folder must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. Following examination of the Veteran and review of the claims file, the examiner should state any and all thoracolumbar spine disorders found, to include any thoracic scoliosis, degenerative joint/disc disease, and/or spondylosis of the thoracolumbar spine. Then, for any thoracic scoliosis found on examination, the examiner should state whether the evidence of record demonstrates whether there was an increase in any thoracic scoliosis during military service, such that the Veteran’s scoliosis was worse off than on her entrance into military service. If such is found to have increased during military service, the examiner must also opine whether the evidence is clear and convincing that the increase during military service was due to the normal progression of that disease. With respect to any scoliosis, the examiner is to take as conclusive fact that such was noted on entrance into military service and she is therefore not presumed sound as to that disorder. With respect to any other thoracolumbar spine disorders found, to include any degenerative joint/disc disease and/or spondylosis, the examiner should opine whether the such at least as likely as not (50 percent or greater probability) began in service or is otherwise the result of military service, to include the noted falls and the notation of questionable spondylosis during service in the April 1990, January 1991, and May 1993 service treatment records. In addressing the above, the examiner should consider the Veteran’s lay statements regarding onset of symptomatology and any continuity of symptomatology since onset and/or since discharge from service. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. 3. Ensure that the Veteran is scheduled for a VA examination with an appropriate examiner that has not previously participated in this case in order to determine whether the Veteran’s IBS is related to her military service or a service-connected disability. The claims folder must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. Following examination of the Veteran and review of the claims file, the examiner should opine whether the Veteran’s IBS at least as likely as not (50 percent or greater probability) began in service or is otherwise the result of military service, to include the noted treatment for IBS therein. The examiner should specifically address the previous January 2017 VA examiner’s findings and conclusions, including the finding that the diagnosis of IBS by the service physician was not appropriate or was a mis-diagnosis of IBS. If such finding is also the opinion of the examiner, a specific and detailed rationale for this finding should be provided. In addressing the above, the examiner should consider the Veteran’s lay statements regarding onset of symptomatology and any continuity of symptomatology since onset and/or since discharge from service. Next, if the examiner finds that the Veteran’s IBS is not directly related to service, the examiner should also opine whether her IBS at least as likely as not is (a) caused by; or, (b) aggravated (i.e., chronically worsened) by her service-connected GERD and gastritis disabilities. The examiner should specifically address the article submitted by the Veteran in February 2018 in his/her discussion. The examiner is reminded that he or she must address both prongs (a) and (b) above. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Z. Maskatia, Associate Counsel