Citation Nr: 1808377	
Decision Date: 02/09/18    Archive Date: 02/20/18

DOCKET NO.  14-10 736	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1. Entitlement to service connection for headaches.  

2. Entitlement to service connection for a gastrointestinal disability, to include gastritis.

3. Entitlement to service connection for a sinus disability.

4. Entitlement to service connection for osteoarthritis.

5. Entitlement to service connection for a back disability.

6. Entitlement to service connection for a neck disability.  

7. Entitlement to service connection for Wegener's disease, to include as due to undiagnosed illness.  

8. Entitlement to service connection for sleep apnea.

9. Entitlement to service connection for multiple sclerosis.


REPRESENTATION

Veteran represented by:	Georgia Department of Veterans Services


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

K. Kovarovic, Associate Counsel 


INTRODUCTION

The Veteran served on active duty from September 1980 to November 1992.

These matters come before the Board of Veterans' Appeals (Board) from February 2011 and March 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. 

The Board notes that the Veteran's headaches, back, and neck claims had been finally denied prior to the February 2011 rating decision.  In such an instance, the submission of new and material evidence would typically be required to reopen the claims.  However, during the course of this appeal, additional service treatment records (STRs) were received that may be relevant to these claims.  Where VA receives relevant official service department records that existed and had not been associated with the claims file when VA first decided the claims, VA will reconsider the claims notwithstanding the requirement of new and material evidence.  See 38 C.F.R. § 3.156(c) (2017).  As such, the submission of new and material evidence is not required in this case for VA to consider the Veteran's headaches, back, and neck claims on the merits.  

Further, the March 2016 rating decision awarded the Veteran service connection for posttraumatic stress disorder (PTSD) and fibromyalgia (also claimed as aching bones, joints, and muscles).  As this represents a full grant of the benefits sought, these issues are not for the Board's consideration at this time. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (noting that a grant of service connection extinguishes appeals before the Board).  In this regard, the Board notes that the Veteran has not expressed disagreement with either the disability evaluations or effective dates as assigned.  See 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017).

In April 2017, the Veteran provided testimony during a videoconference hearing before the undersigned Veterans Law Judge (VLJ) regarding the remaining service connection claims.  A transcript of that hearing is of record.

All matters other than the Veteran's gastrointestinal claim is 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 gastrointestinal symptoms are due to her irritable bowel syndrome (IBS, to include spastic colon, lower abdominal pain, and burning stomach condition), a condition for which she is already service-connected.  

CONCLUSION OF LAW

The criteria for service connection for a gastrointestinal disability, to include gastritis, have not been met.  38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. 
§§ 3.102, 3.303 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA's Duty to Notify and Assist

As required by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating claims for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159(b) (2017).  Here, the Veteran has not raised any issues with the duties to notify or assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).  Thus, the Board will proceed with its review of the merits of the claims.

Legal Criteria and Analysis

The Veteran is currently seeking entitlement to service connection for a number of disabilities.  

Generally, service connection may be granted for a disability resulting from disease or injury incurred in, or aggravated by, active military service.  38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017).  Service connection may also be granted for any disease initially diagnosed after service when the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. 
§ 3.303(d) (2017).

To establish service connection, there must be competent evidence of: (1) The current existence of the disability for which service connection is being claimed; 
(2) a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) a nexus or connection between the disease, injury, or event in service and the current disability.  Shedden v. Principi, 381 F.3d 1163 (2004).

Thus, the Board will analyze the evidence of record against the criteria set forth above.  The Board first notes that it has reviewed all of the evidence in the Veteran's claims file, placing an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no obligation to discuss, in detail, the evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record, but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran's claims.

Gastrointestinal Disability

The Board next turns to the Veteran's claim for entitlement to service connection for a gastrointestinal disability, to include gastritis.  

The threshold question at issue is whether Veteran actually has the disability for which service connection is being sought; specifically, a gastrointestinal disability.  This element of service connection is satisfied if there is evidence that a disability existed at any time during the pendency of the claim.  McClain v. Nicholson, 21 Vet. App. 319 (2007); see also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (holding that a diagnosis shortly before a claim is filed must be taken into consideration when determining if the requirement of a current disability has been met).  

Upon reviewing the evidence of record, the Board does not find competent evidence of a gastrointestinal disability sufficient upon which to grant the claim.  Id. 

In this regard, the Board acknowledges that the Veteran has been diagnosed with a number of gastrointestinal disabilities during the pendency of this appeal.  See, e.g. VA examination dated April 2010 (noting a history of IBS, spastic colon, gastritis, gastrointestinal problems, lower abdominal pain, and burning stomach).  However, the Veteran was previously awarded entitlement to service connection for IBS (to include spastic colon, lower abdominal pain, and burning stomach condition) in a May 2010 rating decision.  Subsequently, a November 2015 VA examiner attributed the full scope of the Veteran's ongoing gastrointestinal symptoms to her diagnosis of IBS with spastic colon, lower abdominal pain, and burning stomach condition, and declined to identify any coexisting gastrointestinal disabilities at that time.  

As such, the Board concludes that the Veterans gastrointestinal symptoms are most properly attributed to her IBS, a condition for which she is already service-connected.  Further contemplation of these symptoms in conjunction with a separate and distinct diagnosis would thus be contrary to the medical evidence of record.  See also VA examination dated July 2014 (noting that the Veteran did not have a diagnosis of gastritis); 38 C.F.R. § 4.14 (2017) (prohibiting the evaluation of the same disability under various diagnoses).  As such, the claim is hereby denied.  


ORDER

Entitlement to service connection for a gastrointestinal disability, to include gastritis, is denied.  


REMAND

Although the Board sincerely regrets the additional delay this may cause, further development is necessary prior to the adjudication of the Veteran's remaining claims.


Several VA examinations are needed with regard to the Veteran's claims.

First, the Veteran has not yet undergone VA examination for the claimed sinus, osteoarthritis, and headache disabilities.  As to the sinus and osteoarthritis disabilities, the claims file contains competent evidence of the claimed disabilities and the Veteran's in-service history of potentially relevant symptoms.  See, e.g., VA treatment records generally (recording a history of sinusitis and rheumatoid arthritis); VA treatment records dated May 2010 (noting functional endoscopic sinus surgery); STRs dated June 1984 (reporting painful joints and arthritis) and November 1992 (noting history of chronic colds).  Thus, the Board finds that VA examinations are now warranted such that the etiology of the claimed conditions may be assessed.  38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 3.159(c)(4) (2017); see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).

As to the headache disability, an April 2010 VA examiner documented the Veteran's history of chronic headaches, which typically occurred several times per week.  Said history is further noted throughout the available VA, private, and Social Security Administration (SSA) records.  See generally VA treatment records (recording Veteran's history of a chronic headache disorder).  The Veteran provided testimony to this effect during the April 2017 hearing.  See p. 11.  Said testimony is corroborated by the Veteran's service treatment records (STRs), which note the Veteran's history of in-service headaches.  See, e.g., STRs dated April 1986 (reporting a headache); November 1992 (noting history of dizziness and headaches).  However, the claims file is devoid of a medical opinion assessing the etiology of the claimed condition.  Therefore, the Veteran should be afforded an examination to determine the nature and etiology of any current headache disability. 

Further, the Board observes that the Veteran's claimed back, neck, Wegener's disease, sleep apnea, and multiple sclerosis conditions have been previously assessed by VA examiners.  However, the Board finds that these examinations are inadequate for the purpose of assessing the Veteran's claims, in light of the examiners' failures to provide definitive diagnoses or rationales in support of the nexus opinions offered.  See VA examinations dated September 2008 (assessing generic back and neck disabilities without offering definitive diagnoses or addressing those noted in the record) and April 2010 (recording diagnoses of Wegener's disease, sleep apnea, and multiple sclerosis but providing no nexus opinions therefor).  Accordingly, the Board finds that new VA examinations are required at this time.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (stating that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).

Accordingly, the case is REMANDED for the following actions:

1.  Provide the Veteran with VA examinations to assess the nature and etiology of the following claimed conditions: (1) Sinus; (2) osteoarthritis; (3) back; (4) neck; (5) Wegener's disease; (6) sleep apnea; (7) multiple sclerosis; and (8) headache disability.  The claims file and a copy of this remand must be made available for review, and the examination reports must reflect that review of the claims file occurred.  All pertinent symptomatology and findings must be reported in detail.  Any indicated special diagnostic tests that are deemed necessary for an accurate assessment must be conducted.

Each examiner should elicit a complete history from the Veteran.  It should be noted that the Veteran is competent to attest to matters of which she has first-hand knowledge, including observable symptomatology.  If there is a clinical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation.  

A complete review of the Veteran's service treatment records must be undertaken.

a.  The sinus, sleep apnea, multiple sclerosis, and headache examiners must indicate the following:

i. Identify whether the Veteran has demonstrated with a pertinent disability (i.e., a sinus disability, sleep apnea, multiple sclerosis, and headache disability) at any time during the pendency of this appeal.  

NOTE: the multiple sclerosis examiner must also indicate whether the Veteran's symptoms are separate and distinct from her service-connected fibromyalgia disability.  

ii. If so, indicate whether it is at least as likely as not (50 percent probability or more) that the disability began in service, was caused by service, or is otherwise related to military service.  In this regard, the examiners must account for the Veteran's in-service history of pertinent symptomatology and her hearing testimony regarding the onset of her symptoms.  

b.  The arthritis examiner must indicate the following:

i.  Identify EACH joint has presented with osteoarthritis during the pendency of this appeal;

ii.  For each identified joint, indicate whether it is at least as likely as not (50 percent probability or more) that the disability began in service, was caused by service, or is otherwise related to military service.  

c.  The neck and back examiners must indicate the following:

i.  Identify each neck and back disability demonstrated by the Veteran during the pendency of this appeal OTHER THAN arthritis;

ii.  For each identified disability, indicate whether it is at least as likely as not (50 percent probability or more) that the disability began in service, was caused by service, or is otherwise related to military service.  The examiner(s) must explicitly address the Veteran's history of several in- and post-service automobile accidents (as noted in the September 2008 VA examination report).  

d.  The Wegener's disease examiner must indicate the following:

i. Identify whether the Veteran has presented with Wegener's disease at any time during the pendency of this appeal.  

ii. If so, indicate whether it is at least as likely as not (50 percent probability or more) that the disability began in service, was caused by service, or is otherwise related to military service.  

iii.  If the Veteran presents with pertinent symptoms but a diagnosis of Wegener's disease is not appropriate, opine whether said symptoms qualify as objective indications of a chronic disability that are at least as likely as not ( 50 percent probability or greater) resulting from an undiagnosed illness or medically unexplained multisymptom illness?

In formulating the opinions, the examiners are advised that the term "at least as likely as not" does not mean "within the realm of possibility."  Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it.

A detailed rationale supporting the examiner's opinion must be provided.  If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge.  See Jones v. Shinseki, 23 Vet. App. 382 (2010).

2.  Thereafter, readjudicate the claims on appeal.  If the benefits sought remain denied, provide a Supplemental Statement of the Case to the Veteran and her representative, and an appropriate period in which to respond.  Then, return the appeal to the Board.

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).

This claim 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).




______________________________________________
LANA K. JENG
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs