Citation Nr: 18154487 Decision Date: 11/30/18 Archive Date: 11/29/18 DOCKET NO. 16-35 206 DATE: November 30, 2018 ORDER Entitlement to service connection for Crohn’s disease is granted. Entitlement to service connection for depressive disorder, to include as secondary to Crohn’s disease is granted. REMANDED Entitlement to service connection for a bone condition, claimed as osteopenia, to include as secondary to Crohn’s disease is remanded. Entitlement to service connection for a small bowel resection, to include as secondary to Crohn’s disease is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. After affording the Veteran the benefit of the doubt, the Veteran’s Crohn’s disease is etiologically related to his military service. 2. The Veteran’s depressive disorder was caused by his service-connected Crohn’s disease. CONCLUSIONS OF LAW 1. The criteria for service connection for Crohn’s disease has been met. 38 U.S.C. §§ 1110, 1112, 1113 (2012); 38 C.F.R. §§ 3.303 (2017). 2. Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for depressive disorder secondary to Crohn’s disease, have been met. 38 U.S.C. § § 1110, 5107 (2012); 38 C.F.R. § § 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 2000 to May 2004. The issue of entitlement to a TDIU was not certified for appeal. However, when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). Specifically, in February 2017, the Veteran’s psychologist wrote that the Veteran’s psychiatric disability resulted in the Veteran’s unemployability. As the evidence suggests that the Veteran is unemployable due to symptoms of his disabilities, the issue of entitlement to a TDIU has been raised. Service Connection The Veteran asserts entitlement to service connection for Crohn’s disease and depressive disorder. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link, or nexus, between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303 (2017). 1. Entitlement to service connection for Crohn’s disease The Board finds that the Veteran is entitled to service connection for Crohn’s disease. In this case, there is evidence supporting a current disability. The Veteran has been diagnosed with Crohn’s disease. See May 2014 DBQ. Thus, the first Shedden element has been met. As to an in-service incurrence, the Veteran believes that his symptoms of Crohn’s disease first manifested in service. In a November 2016 lay statement from the Veteran’s friend from service, she described the Veteran as looking gaunt, frail, and fatigued during their service. In a November 2016 lay statement from the Veteran’s wife, she described the Veteran’s difficulty in gaining weight and experiencing fatigue during his service. In a January 2017 lay statement from the Veteran’s mother-in-law, she described the Veteran as being often fatigued, experiencing abdominal pain, losing weight, and having problems with diarrhea and blood in his stool during service. In a January 2017 letter from the Veteran’s medical provider, she noted that many Crohn’s patients exhibit symptoms such as fatigue and weight loss and that the Veteran’s symptoms were present in 2003. The Boards finds the lay statements to be credible and the second Shedden element has been met. With regard to nexus, the Board finds that the probative evidence of record conflicts. In January 2017, a physician’s assistant opined that the Veteran did suffer from Crohn’s disease from 2003 to 2007. Later that month, the Veteran’s physician opined it was as likely as not that the Veteran’s Crohn’s disease began in 2003, while he was in service, and had continued uninterrupted to the present. The Board notes that an October 2014 VA examiner provided a negative nexus opinion regarding the Veteran’s Crohn’s disease. In light of the foregoing, the Board finds that the evidence is, at a minimum, in equipoise regarding the question of whether the Veteran’s current Crohn’s disease is related to his service. 38 U.S.C. § 1131 (2012); 38 C.F.R. §§ 3.303 (2017). The benefit of the doubt will be conferred in the Veteran’s favor. As all elements of service connection have been established, the service-connection claim for a Crohn’s disease is granted. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.310 (2017); see Gilbert, 1 Vet. App. at 55. 2. Entitlement to service connection for depressive disorder, to include as secondary to Crohn’s disease Service connection may be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen v. Brown, 8 Vet. App. 374 (1995). With regard to a depressive disorder, the Board finds that secondary service connection is warranted. The Veteran has submitted evidence of a current disability of depressive disorder. See February 2017 Private Examination and Private Opinion. Accordingly, the Board finds that the first element of secondary service connection is established. See Wallin, 11 Vet. App. at 512. As noted above, the Veteran is now service-connected for Crohn’s disease. Thus, the second element of secondary service connection is also established. See id. The remaining question is whether there is medical nexus evidence establishing a connection between the service-connected disability and the current disability. In a February 2017 opinion from the Veteran’s private psychologist, the psychologist opined that that the Veteran’s Crohn’s disease is more likely than not causing his depressive disorder. No negative opinions are of record. Thus, the Board finds that the final element of secondary service connection is established. In light of the foregoing, the Board finds that the Veteran’s current depressive disorder is related to his service-connected Crohn’s disease. 38 U.S.C. § 1131 (2012); 38 C.F.R. §§ 3.303 (2017). The service-connection claim for a depressive disorder is granted. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.310 (2017); see Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). REASONS FOR REMAND Upon review of the record, the Board finds that the remaining issues must be remanded. The Board sincerely regrets the additional delay caused by this remand, but wishes to assure the Veteran that it is necessary for a full and fair adjudication of his remaining claims. 1. Entitlement to service connection for a bone condition, claimed as osteopenia, to include as secondary to Crohn’s disease is remanded. The Board notes that the Veteran has not been afforded a VA examination with respect to his current claim for a bone condition. VA’s duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Here, the Veteran’s December 2013 treatment records indicate that he is being treated for a osteopenia and has asserted that this condition is due to a service-connection condition; however, there is insufficient evidence of record to decide the claim. Consequently, a remand for an examination and etiology opinion is warranted. See id.; Locklear v. Nicholson, 20 Vet. App. 410 (2006). 2. Entitlement to service connection for a small bowel resection, to include as secondary to Crohn’s disease is remanded. The Board finds that a new VA examination and opinion is warranted for the Veteran’s small bowel resection claim. In January 2012 the Veteran underwent a VA examination for his small bowel resection. No opinion was provided as to whether the Veteran’s small bowel resection was related to his now service-connected Crohn’s disease. As the etiology opinion of the Veteran’s small bowel resection is necessary to make a decision on the Veteran’s claim, and the examination provided is inadequate, remand is required to obtain this opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes to provide a medical examination or opinion, it must ensure that the examination or opinion is adequate). 3. Entitlement to a total disability rating based on individual unemployability is remanded. The Board finds that the TDIU issue is not fully developed for appellate review, as the Veteran has not been provided with notice of the laws and regulations governing TDIU. The matter must be remanded to initiate this due process. See 38 C.F.R. § 4.16. Furthermore, with regard to the TDIU claim, it is inextricably intertwined with the Veteran’s service-connection claims. The Board will defer adjudication of the TDIU claim until the development deemed necessary for the claim has been completed. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); Holland v. Brown, 6 Vet. App. 443 (1994); Henderson v. West, 12 Vet. App. 11 (1998). The matters are REMANDED for the following action: 1. Assist the Veteran in associating with the claims folder updated treatment records. 2. Undertake all notice and evidentiary development needed to resolve the issue of entitlement to a TDIU. This should include sending the Veteran a letter advising him of the information and evidence needed to award a TDIU. The letter should also request that he complete a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, in order to provide the information needed to substantiate the claim for a TDIU. 3. After any additional records are associated with the claims file, schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s bone condition. The claims file should be made available to the examiner for review in connection with the examination. Based on review of the record and conducting an examination of the Veteran, the examiner should respond to the following: a) The examiner should state whether it is at least as likely as not (a 50 percent probability or more) that the bone condition, to include osteopenia, began in service, was caused by active service, or is otherwise related to active service. The examiner should take a thorough history from the Veteran regarding the onset and pattern of his symptoms. b) The examiner should state whether it is at least as likely as not (50 percent or greater probability) that the bone condition, to include osteopenia, was caused or aggravated by the Veteran’s service-connected Crohn’s disease. • If the examiner finds that the Veteran’s bone condition was aggravated by his service-connected Crohn’s disease, then he/she should specify the baseline level of disability of the disability prior to aggravation and the permanent, measurable level of increased impairment due to service-connected Crohn’s disease. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. The examiner must provide the rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s small bowel resection. The claims file should be made available to the examiner for review in connection with the examination. Based on review of the record and conducting an examination of the Veteran, the examiner should respond to the following: a) The examiner should state whether it is at least as likely as not (a 50 percent probability or more) that the small bowel resection began in service, was caused by active service, or is otherwise related to active service. The examiner should take a thorough history from the Veteran regarding the onset and pattern of his symptoms. b) The examiner should state whether it is at least as likely as not (50 percent or greater probability) that the small bowel resection was caused or aggravated by the Veteran’s service-connected Crohn’s disease. • If the examiner finds that the small bowel resection was aggravated by his service-connected Crohn’s disease, then he/she should specify the baseline level of disability of the disability prior to aggravation and the permanent, measurable level of increased impairment due to service-connected Crohn’s disease. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. The examiner must provide the rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 5. After any necessary development and readjudication of the service-connection claims, readjudicate the TDIU issue remaining on appeal. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Gandhi, Associate Counsel