Citation Nr: 18156372 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 16-36 928 DATE: December 7, 2018 ORDER The previously denied claim for entitlement to service connection for a spine disability is reopened. The previously denied claim for entitlement to service connection for an acquired psychiatric disability is reopened Service connection for a low back disability is granted. A compensable rating for chronic constipation is denied. Service connection for diabetes mellitus type II is denied. An effective date earlier than March 23, 2010 for service connected chronic constipation is denied. REMANDED Service connection for an acquired psychiatric disability is remanded. The claim for a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The evidence received subsequent to the most recent final denial of service connection for a low back disability is new and material because it raises a reasonable possibility of substantiating the claim. 2. The evidence received subsequent to the most recent final denial of service connection for a psychiatric disability is new and material because it raises a reasonable possibility of substantiating the claim. 3. Resolving all reasonable doubt in the Veteran’s favor, the low back disability is etiologically related to active service. 4. The Veteran has not been diagnosed with diabetes mellitus. 5. The Veteran’s constipation has been productive of mild symptoms, defined as episodes of bowel disturbance with occasional abdominal distress, but not of moderate symptoms. 6. VA received the Veteran’s claim for service connection for constipation on March 23, 2010; and no communication prior to March 23, 2010, was received that could be construed as an informal or formal claim of entitlement to service connection for constipation. CONCLUSIONS OF LAW 1. As new and material evidence has been received since the March 2011 rating decision, the requirements to reopen a claim for service connection for a low back disability have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. As new and material evidence has been received since the March 2011 rating decision, the requirements to reopen a claim for service connection for a psychiatric disability have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. Resolving all reasonable doubt in the Veteran’s favor, the criteria for service connection for a low back disability have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. 5. The criteria for a compensable rating for constipation are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.115b, Diagnostic Code 7399-7319. 6. The criteria for entitlement to an effective date earlier than March 23, 2010 for service connected constipation have not been met. 38 U.S.C. §§ 5110, 5107; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1981 to July 1982. New and Material Evidence New evidence is defined as evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The Veteran’s claim for service connection for a psychiatric disability was previously denied in a March 2011 rating decision, on the basis there was no evidence of record to show that the Veteran had a diagnosed psychiatric disability. The Veteran did not appeal that rating decision. Her claim for service connection for a low back disability was previously denied in a March 2011 rating decision, on the basis there was no evidence of record to show that the Veteran’s low back disability was related to service. The Veteran did not appeal that rating decision. Since the March 2011 rating decision, newly received evidence includes a private examination report that contends the Veteran has a currently diagnosed psychiatric disability and low back disability that are related to service to include as caused or aggravated by service connected disabilities. The Board finds that the evidence added to the claims file is new as it was not before the adjudicators at the time of the March 2011 rating decision. Furthermore, the new evidence is material because it relates to unproven elements of the claims previously denied in the March 2011 decision. Specifically, that newly submitted evidence suggests that the Veteran’s psychiatric and low back disabilities may have been caused by active service. Accordingly, the Board finds that the low threshold for reopening the claims have been met. Shade v. Shinseki, 24 Vet. App. 110 (2010). Therefore, the new evidence is material, and the Veteran’s claims are reopened. Increased Rating 1. Entitlement to a compensable rating for chronic constipation Since service connection was established effective March 23, 2010 for chronic constipation/gastritis, the Veteran’s constipation disability has been rated analogously to irritable colon syndrome and assigned a noncompensable (zero percent) disability rating pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7399-7319. Under Diagnostic Code 7319, a noncompensable rating is warranted for mild irritable bowel syndrome, with disturbances of bowel function with occasional episodes of abdominal distress. A 10 percent disability rating is warranted for moderate irritable bowel syndrome with frequent episodes of bowel disturbance and abdominal distress. A maximum schedular 30 percent disability rating is warranted for severe irritable bowel syndrome with diarrhea or alternating diarrhea and constipation with constant abdominal distress. 38 C.F.R. § 4.114, Diagnostic Code 7399-7319. A March 2012 VA treatment record shows that the Veteran had slow transit constipation, and elevated lipids. The Veteran reported that she has been involved in several studies for chronic constipation, with questionable IBS now. She reported having difficulty with bowel movements. She stated her normal bowel movement pattern varied from going once per day to then not having another bowel movement for as long as 30 days. She reported trying several laxatives, usually with minimal effect. She reported rectal pain, and that she could feel possible stool when wiping from urinating. When she did have bowel movements, she reported that they were usually small pallets. A February 2014 VA examination report shows that the Veteran was diagnosed with chronic constipation secondary to slow transit. The Veteran reported using laxatives and enemas with some help. The Veteran also had a colonoscopy done in May 2012 that was unremarkable except for mild diverticulosis, after which she was placed on MiraLax and high fiber diet. The Veteran did not report any diarrhea, gassy symptoms, or intestinal cramps. Continuous medication was not required for control of the Veteran’s symptoms. The examiner reported that the Veteran did not have episodes of bowel disturbances with abdominal distress, or exacerbations or attacks of the intestinal condition. No weight loss was attributable to the intestinal condition. Malnutrition, serious complications or other general health effects attributable to the intestinal condition were not diagnosed. The examiner also reported that the intestinal condition did not impact her ability to work. The examiner remarked that the Veteran had a normal colonoscopy with no fecal impaction. An April 2016 VA treatment report shows that the Veteran only had relief from constipation with the use Linzess and went from one bowel movement per month to three bowel movements with use of medication. The Veteran reported using sennosides twice daily, Linzess, and MiraLax. The Veteran now reported one bowel movement every three days with good stool consistency. She continued to drink water and ate a high fiber diet. No abdominal pain or blood stool were reported. Having considered the medical and lay evidence of record, the Board finds that an initial compensable rating for constipation is not warranted. The Veteran’s constipation has been manifested by occasional disturbance of bowel function with no documented or reported episodes of abdominal distress caused by constipation. These findings are consistent with the noncompensable rating currently assigned for constipation. A higher, 10 percent rating is not warranted because neither the medical evidence of record, nor the Veteran’s lay reports reflect moderate irritable bowel syndrome with frequent episodes of bowel disturbance and abdominal distress. While constipation has been reported, the Board notes that the Veteran has reported her medication, diet, and supplement regime has been working. The Board has considered other potentially applicable rating criteria, but finds the Veteran’s constipation disability is properly rated under Diagnostic Code 7319 for irritable colon syndrome because the functions affected and anatomical localization and symptomatology between irritable colon syndrome and constipation are closely related. 38 C.F.R. § 4.20. The Board finds that the evidence is against the assignment of an initial compensable disability rating for the Veteran’s service-connected constipation, and the claim is denied. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection is also warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. When service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition. Allen v. Brown, 7 Vet. App. 439 (1995). 2. Entitlement to service connection for a spine disability The Veteran asserts her low back disability was incurred during service. Specifically, she has reported and submitted lay statements that she suffered a back injury during service when a storage tank fell and injured her lower back. A review of the service treatment records shows she reported low back pain in August 1981. No separation examination is of record. Post service, an October 1982 VA examination report showed that the Veteran reported lower back pain. She reported that she did not incurred a specific back injury but felt shooting pains that she also experienced during service. The examiner determined that x-rays showed she had spina bifida. A May 2006 private treatment record showed MRI of the thoracic spine as unremarkable. A May 2007 private treatment record showed CT scan of the lumbar spine as normal. A September 2010 VA examination report diagnosed the Veteran with back pain and muscle spasms with a history of disc problems. The examiner opined that an opinion as to whether the back condition was related to service could not be provided due without resorting to mere speculation. A March 2011 statement from a fellow service member reports that the Veteran incurred an injury to her back when moving a storage tank. The service member reported that the Veteran did not go to sick call right away but returned from sick call with a duty waiver, but was placed in an administrative position due to the back pain. A November 2016 private examination report shows that the examiner did not believe the Veteran had spina bifida after a review the claims file as well as all radiographic evidence. The private examiner determined that the Veteran incurred some spinal trauma during service, when, as she has reported a storage tank fell on her causing low back pain as well as constipation for which she is now service connected. The private examiner opined that the current spinal problems the Veteran was experiencing more likely than not began in service and has continued to this day. The Board finds that after a review of the evidence that service connection is warranted for a low back disability as the private examiner provided an adequate nexus opinion. Additionally, the Board notes that the Veteran reported back pain during service, and shortly thereafter which also supports her claim. Therefore, the Board finds that service connection for a low back disability is granted. 3. Entitlement to service connection for diabetes mellitus type II The Veteran asserts that she has diabetes mellitus that was caused by active service. A review of the Veteran’s service treatment records shows no reports or diagnosis of diabetes mellitus. A review of post-service VA treatment records shows no diagnosis for diabetes mellitus. Service connection may only be granted for a current disability. When a claimed condition is not shown, there may be no grant of service connection. Congress specifically limited entitlement for service-connected disease or injury to cases where the incident resulted in a disability. In the absence of proof of a present disability there can be no valid claim. 38 U.S.C. § 1131; Brammer v. Derwinski, 3 Vet. App. 223 (1992). Here, there is no medical evidence that the Veteran has a current diagnosis of diabetes mellitus. In fact, numerous VA treatment records mark “NO” next to diabetes mellitus. The only evidence of record that the Veteran has a current diabetes mellitus disability are her own lay statements. Lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (sometimes the layperson will be competent to identify the condition where the condition is simple, for example, a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In the present case, while a lay person may be competent to report symptoms of headaches, they are not competent to diagnose diabetes mellitus. The diagnosis of diabetes mellitus requires greater medical knowledge and testing to determine a diagnosis, which the Veteran has not shown he possesses. Accordingly, the Veteran is not competent to establish diagnosis for her diabetes mellitus. In the absence of proof of a current disability, there is no valid claim of service connection. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). While the requirement that a current disability be present is satisfied when a claimant has a disability at any time during the pendency of a claim, the record does not demonstrate that the Veteran has been diagnosed with diabetes mellitus at any time during the course of the appeal. The threshold element of a service connection claim (a current disability) has not been met and the claim is denied. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Earlier Effective Date Unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. The effective date of an award of disability compensation shall be the day following separation from service or the date entitlement arose if the claim is received within one year of separation, otherwise the date of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (b); 38 C.F.R. § 3.400 (b)(2). A specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101 (a); 38 C.F.R. § 3.151 (a). Claim or application means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1 (p). Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a Veteran or representative, or other party, may be considered an informal claim. An informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the Veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155. The Veteran contends that she is entitled to an effective date earlier than March 23, 2010 for the grant of service connection for constipation. A thorough review of the record does not show that any written communication by or on behalf of the Veteran was received at any time prior to March 23, 2010 for which she requested a determination of entitlement or evidenced a belief in entitlement to service connection for constipation. The record simply does not show that the Veteran filed any claim of entitlement to service connection for this disability at any point prior to the date noted above. Thus, an earlier effective date is not warranted for the grant of service connection for constipation. 38 U.S.C. § 5110 (b); 38 C.F.R. § 3.400 (b)(2). REASONS FOR REMAND 4. Entitlement to service connection for a psychiatric disability. Regarding the Veteran’s claim for entitlement to service connection for a psychiatric disability, the Board finds that another VA examination is warranted. The Board notes that the Veteran underwent a VA psychiatric examination in 2010, in which the examiner could not provide an etiological opinion without resorting to speculation. The Board also notes that the Veteran underwent a private examination which resulted in an opinion that her psychiatric disability was etiologically related to service to include as proximately caused and aggravated by service connected disabilities. However, while the private doctor provided this opinion, no rationale concerning the key questions as to why the psychiatric disability was related to service or caused by service connected disabilities was provided. Therefore, the Board finds that an additional VA examination is warranted. 5. A total disability rating based on individual unemployability (TDIU) is remanded. A claim for a TDIU is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Here, the Board notes that the Veteran’s ability work has been impacted by her low back disability which as noted above is now service connected. Thus, the Board finds that the Veteran’s claim properly includes consideration of whether a TDIU is warranted. The matters are REMANDED for the following action: 1. Schedule a VA examination to address the nature and etiology of the Veteran’s psychiatric disability. The examiner should review pertinent documents to include the December 2016 private psychiatric evaluation report. The examiner should diagnose any current psychiatric disability, then answer the following questions: a) Is it at least as likely as not (50 percent or greater probability) that any diagnosed psychiatric disability either began during or was otherwise caused by the Veteran’s military service? Why or Why Not? b) Is it at least as likely as not (50 percent or greater probability) that any diagnosed psychiatric disability was caused by a service connected disability or disabilities? Why or Why Not? c) Is it at least as likely as not (50 percent or greater probability) that any diagnosed psychiatric disability was aggravated (made worse) by a service connected disability or disabilities? Why or Why Not? If aggravation is found, the examiner should identify a baseline level of severity of the acquired psychiatric disability by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the acquired psychiatric disability. If such cannot be done, it should be explained why. (Continued on the next page)   In rendering the requested opinions, the examiner should specifically consider and discuss the Veteran’s contentions, the lay statements of record, and her service treatment records which shows an assessment of attention deficit syndrome. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Dworkin, Associate Counsel