Citation Nr: 1808972 Decision Date: 02/12/18 Archive Date: 02/23/18 DOCKET NO. 11-12 696 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for a back condition. 2. Entitlement to service connection for a gastrointestinal condition (claimed as ulcerative colitis). 3. Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for a gastrointestinal condition (claimed as ulcerative colitis), claimed as due to treatment provided by the Department of Veterans Affairs (VA) in July 2008. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). 5. Whether a timely substantive appeal was received with regard to a June 2011 statement of the case that denied earlier effective dates for the grants of service connection for residuals of left clavicle fracture and mild degenerative arthritis of the right femur. REPRESENTATION Veteran represented by: Michael V. Quatrini, Attorney ATTORNEY FOR THE BOARD P. Lopez, Associate Counsel INTRODUCTION The veteran served on active duty from November 1980 to March 1986. These matters come before the Board of Veterans' Appeals (Board) on appeal from November 2007 and March 2010 rating decisions, and a January 2012 administrative decision of the VA Regional Office (RO). The Board previously considered issues 1 through 4 of the title page in December 2014, at which it remanded these issues for additional development. The issue of service connection for a back condition initially stemmed from the February 2009 rating decision, which the Veteran appealed via a September 2009 notice of disagreement. Nevertheless, as discussed by the Board in its prior (December 2014) decision, a November 2007 rating decision (denying the Veteran's request to reopen his previously denied claim of service connection for a back condition) did not become final and is therefore currently on appeal. The issues of service connection for ulcerative colitis (to include entitlement to compensation under 38 U.S.C. § 1151) and entitlement to a TDIU stem from the March 2010 rating decision, which the Veteran appealed via a March 2011 notice of disagreement. Finally, the issue of whether a timely substantive appeal was received stems from the January 2012 administrative decision, which the Veteran appealed via a February 2012 notice of disagreement. As noted in the Board's December 2014 decision, the Veteran failed to appear at a scheduled March 2012 hearing before a Veterans Law Judge, and a request for postponement was not received and granted. Accordingly, the Board found that the Veteran's request for a hearing was withdrawn. See 38 C.F.R. § 20.702(d) (2016). The issues of service connection for a gastrointestinal disability (to include entitlement to compensation benefits under 38 U.S.C. § 1151) and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The weight of the evidence supports a finding that the Veteran's current back disability is related to service. 2. On June 17, 2011, the RO issued a statement of the case, confirming the previously assigned effective date for residuals of a left clavicle fracture and mild degenerative arthritis of the right femur. VA received a substantive appeal with regard to these issues within 60 days of issuance of the statement of the case. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disorder are met. 38 U.S.C. §§ 1101, 1110, 1112(a), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The requirement of a timely-filed appeal is met, and the Veteran's August 2011 substantive appeal is accepted. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.303, 20.305 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection for Back Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Where a disease is first diagnosed after discharge, service connection will be granted when all of the evidence, including that pertinent to service, establishes it was incurred in active service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). Service connection requires evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the condition incurred or aggravated by service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding any material issue, or the evidence is in relative equipoise, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Where the veteran asserts entitlement to a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303(b) by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). Arthritis is such a disease. The Veteran seeks service connection for a low back disability. See 02/25/2006, VA 21-4138 Statement In Support of Claim. A September 2016 VA examination shows a diagnosis of degenerative arthritis of the lumbar spine. A the September 2016 VA examination, the Veteran reported that has had episodes of low back pain since service, especially since a 1982 motor vehicle accident that resulted in fractures of his right femur, left clavicle, and left scapula. Service treatment records show repeated complaints of low back pain in August 1981. The Veteran indicated that he had such pain ever since a car accident the month before. These records also show treatment for a lumbosacral strain in October 1981, as a result of falling off the back of a truck. A December 1982 emergency treatment note confirms that the Veteran was involved in a motor vehicle accident with multiple trauma, whiplash, and concussion, in October 1982. The Veteran separated from service in March 1986 after he was found unfit for military service due to arthralgia of right thigh and knee as residuals of previous right femur fracture. See 09/28/2009, Physical Evaluation Board Proceedings. Right after service, the Veteran submitted a claim of service connection for his back. See 03/27/1986, VA 21-526 Veterans Application for Compensation or Pension. In June 1986, he underwent a VA examination. The examination report shows a diagnosis of chronic low back pain. See 06/05/1986, VA examination. In a September 2016 opinion, a VA examiner opined that the Veteran's degenerative disc disease is less likely than not related to service. The examiner indicated that service treatment records showed acute periods of low back pain, but were silent for a chronic low back condition. Ultimately, the examiner opined that the Veteran's degenerative disc disease was likely attributable to every day wear and tear, a history of cigarette smoking, and the natural aging process. See also 03/16/2011, VA examination (opining that the Veteran's degenerative disc disease is likely related with normal aging and smoking, based on review of the record). Notwithstanding the September 2016 VA opinion, the Board finds that a causal connection between the Veteran's current back disability, diagnosed as degenerative arthritis of the lumbar spine, and his back symptoms in service has been established by the competent lay evidence. Although the VA examiner provided a negative opinion in this regard, the opinion is less probative than the favorable evidence of record because the examiner did not consider the Veteran's lay statements of continuous symptoms since service. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology. However, this method may be used only for the chronic diseases listed in 38 C.F.R. § 3.309, such as arthritis. Walker, 708 F.3d at 1336-38. The Board finds credible the Veteran's statement of continuous back symptoms since service, especially in light of the June 1986 VA examination, which shows a diagnosis of chronic low back pain right after service. The Veteran is competent to report a continuity of symptomatology. Charles v. Principi, 16 Vet. App. 370, 374 (2002). There is nothing in the record to contradict his reports. Giving the benefit of the doubt to the Veteran, the elements of service connection for a low back disorder are established. 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. Whether Substantive Appeal Was Timely An appeal to the Board is initiated by a notice of disagreement and completed by a substantive appeal after a Statement of the Case is furnished. See 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.203 (2017). A substantive appeal (VA Form 9) must be filed within 60 days from the date that that agency of original jurisdiction (AOJ) mails the Statement of the Case (SOC) to the appellant, or within the remainder of the 1 year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. The date of mailing of the SOC will be presumed to be the same as the date of the SOC for purposes of determining whether an appeal has been timely filed. 38 C.F.R. § 20.302 (2017). Extensions of time for filing a Substantive Appeal may be granted for good cause. 38 C.F.R. § 20.303 (2017). When these Rules require that any written document be filed within a specified period of time, a response postmarked prior to expiration of the applicable time limit will be accepted as having been timely filed. In the event that the postmark is not of record, the postmark date will be presumed to be five days prior to the date of receipt of the document by the Department of Veterans Affairs. In calculating this 5-day period, Saturdays, Sundays, and legal holidays will be excluded. 38 C.F.R. § 20.305(a) (2017). In computing the time limit for filing a written document, the first day of the specified period will be excluded and the last day included. Where the time limit would expire on a Saturday, Sunday, or legal holiday, the next succeeding workday will be included in the computation. 38 C.F.R. § 20.305(b) (2017). Here, a February 2009 rating decision granted higher ratings for residuals of a left clavicle fracture and mild degenerative arthritis of the right femur, effective April 28, 2008. The Veteran appealed the assigned effective date for both ratings via a February 2009 notice of disagreement. On June 17, 2011, the RO issued a statement of the case, confirming the previously assigned effective date for both disabilities. Thereafter, on August 24, 2011, VA received a substantive appeal with regard to the issues of an earlier effective date. A postmark is not of record. Accordingly, the postmark date is presumed to be five days prior to August 24, 2011. Further, Saturdays and Sundays must be excluded from the computation. Applying these rules, the Board finds that the Veteran's substantive appeal was received within 60 days of the June 2011 statement of the case. Therefore, the Veteran's substantive appeal is accepted as timely. ORDER Service connection for degenerative arthritis of the lumbar spine is granted. The August 2011 substantive appeal for the issues of earlier effective dates for the grants of service connection for residuals of left clavicle fracture and mild degenerative arthritis of the right femur is accepted as timely. REMAND As noted in the Board's December 2014 remand, the Veteran has asserted that he has a gastrointestinal disability that had onset during service and that he has ulcerative colitis that was caused by VA's prescription of ibuprofen in July 2008. A review of the record reveals that the Veteran complained of abnormal bowel movements, diarrhea, upset stomach, and epigastric pain throughout service, and was diagnosed with viral gastroenteritis and an irritable bowel problem at various times throughout his service. A March 2008 VA treatment note indicates that the Veteran, at that time, had irritable bowel syndrome, which appeared to be related to his back, and a May 2008 VA examination report documents diagnoses of irritable bowel syndrome and gastroesophageal reflux disease. In addition, records dated July 2008 indicate that the Veteran was prescribed ibuprofen at a VA facility to manage his chronic pain and, thereafter, reported to a non-VA hospital one week later with a complaint of rectal bleeding. These non-VA records document a diagnosis of "colitis, possible ulcerative colitis," and include a discharge summary that notes that the Veteran's bowels had slowed down and he did not have any further bright red blood per rectum at the time of his discharge. VA records dated July 2008 also indicate that the Veteran experienced active colitis that may have been acute, and non-VA records dated July 2008 indicate that Motrin (ibuprofen) "can trigger acute ulcerative colitis." Notably, VA treatment records dated April 2009 indicate that the Veteran had active ulcerative colitis in the sigmoid colon and rectum at that time. Additionally, these records indicate that the Veteran cannot take non-steroidal anti-inflammatory drugs (NSAIDs) due to gastrointestinal problems. Based on the above, the Board, in December 2014, determined that a remand was necessary in order to determine the following with regard to the Veteran's claims for service connection for a gastrointestinal condition and compensation for a gastrointestinal condition under 38 U.S.C.A. § 1151: (1) whether the Veteran currently has chronic ulcerative colitis; (2) whether the Veteran's in-service gastrointestinal problems were early manifestations of a present gastrointestinal disability, if any; (3) whether VA's prescription of ibuprofen in July 2008 caused the Veteran to develop additional gastrointestinal disability; and (4) whether the Veteran's back condition or any medication used to treat that condition, to include ibuprofen or other NSAIDS, caused or aggravated the Veteran's current gastrointestinal condition. Accordingly, the Board instructed the RO to schedule the Veteran for a VA examination and to request a VA opinion that would address the relevant questions. The Veteran underwent a VA examination in September 2016. The VA examiner diagnosed ulcerative colitis and opined that this condition was less likely than not related to service, secondary to the Veteran's back disability (to include related medications) or caused by the use of ibuprofen, as prescribed by a VA provider. For the reasons explained below, the Board finds that an addendum is needed. First, the September 2016 VA opinion focused only on the Veteran's ulcerative colitis. Both the examination report and the opinion are silent as to other gastrointestinal disabilities. As mentioned above, VA treatment records show a history of gastroesophageal reflux disorder (GERD) and irritable bowel syndrome (IBS). Significantly, the September 2016 VA examination report indicates that the Veteran presently takes omeprazole, a proton-pump inhibitor, used to treat GERD and other conditions caused by excess stomach acid. See Drugs.com, Omeprazole, available at https://www.drugs.com/omeprazole.html. On remand, the VA examiner must identify all current gastrointestinal disabilities, that is, all gastrointestinal disabilities that have been present during the appeal period. While the Veteran's claim was received on September 11, 2009, the Board notes that, according to a VA treatment note from March 5, 2008 (received May 9, 2008), the Veteran, at the time, had irritable bowel syndrome, which appeared to be associated with his back. The Board finds that this VA treatment record, which was in VA's constructive possession, raised the issue of service connection for a gastrointestinal disability, as secondary to the claimed back disability. Accordingly, the VA examiner should discuss the etiology of all gastrointestinal disabilities present since March 5, 2008. Second, the September 2016 VA examiner discussed whether the VA-prescribed use of ibuprofen had caused the Veteran's ulcerative colitis. The examiner opined that the colitis was less likely than not caused or aggravated by the prescribed ibuprofen. The examiner acknowledged that some studies suggest that certain environmental factors, including NSAIDS, antibiotics, and oral contraceptives, may increase a chance of a person developing ulcerative colitis, but indicated that the overall chance was nonetheless low. Further, the Veteran exhibited other possible risk factors for ulcerative colitis, namely a family history of ulcerative colitis and a personal history of smoking and obesity. Ultimately, the examiner concluded that there was no significant evidence, including large randomized clinical trials or other research, to substantiate the claim that the Veteran's ulcerative colitis was caused or aggravated by the prescribed ibuprofen. The September 2016 VA opinion, however, did not discuss whether VA treatment for the Veteran's ulcerative colitis resulted in additional disability. In a March 2010 statement, the Veteran indicated that he had undergone multiple surgeries and hospitalizations for his ulcerative colitis. Significantly, he asserted that that a February 2010 colectomy had caused additional damage. He described the surgery as "botched," adding that the surgeon who was to perform the surgery did not show up on the day of the surgery and that he ended up spending ten and a half hours in surgery. See 03/10/2011, VA 21-4138 Statement In Support of Claim. On remand, the VA examiner must review the Veteran's history of VA treatment records for his ulcerative colitis, with particular emphasis on the February 2010 colectomy, and issue an opinion as to whether VA treatment resulted in additional disability. The Veteran raised the issue of entitlement to a TDIU in a statement received in April 7, 2008. In his formal TDIU application (received September 28, 2009), he indicated that he became too disabled to work in September 19, 2007, date in which he last worked. He asserted that he unable to work due to his ulcerative colitis and his back, right leg, and left shoulder disabilities. Prior to this decision, the Veteran's combined disability rating was no higher than 40 percent, based on his service-connected diabetes and peripheral neuropathy of all extremities. As such, he did not meet the schedular percentage threshold for a TDIU. See 38 C.F.R. § 4.16(a). Nevertheless, as discussed above, the Board is granting service connection for degenerative arthritis of the lumbar spine. As the Veteran's TDIU claim is at least partially based on his back disability, the Board finds that the appropriate course of action is to remand the issue of a TDIU for readjudication in light of the rating assigned for the now service-connected lumbar spine disability. If, following assignment of the appropriate disability rating, the Veteran still does not meet the schedular percentage threshold for a TDIU, the AOJ should consider whether the Veteran's TDIU claim warrants referral to the Director, Compensation Service, for extraschedular consideration, per 38 C.F.R. § 4.16(b). VA treatment records were last associated with the claims file in October 2016. See CAPRI records. On remand, the RO should obtain any outstanding VA treatment records. Accordingly, the case is REMANDED for the following actions: 1. Obtain any outstanding VA treatment records. 2. After completing step #1, forward the claims file, including a copy of this remand, to the individual who conducted the September 2016 VA examination, or an appropriately qualified VA clinician if that individual is unavailable, to provide an addendum opinion. (A full VA examination should not be scheduled unless it is deemed necessary by the examiner or otherwise required by the evidence.) Review of the claims file should be noted in the examiner's report. The examiner should respond to the following: (a) Identify any gastrointestinal disability that has manifested during the rating period (since March 2008). Please note that VA treatment records indicate a history of IBS and GERD. The examiner should indicate whether the Veteran had IBS or GERD at any time since March 2008. (b) For any gastrointestinal disability found to have been present at any point since March 2008, is it at least as likely as not that any such disability had onset in service, or was otherwise caused or aggravated by his service? In providing this opinion, the examiner is asked to consider whether the Veteran's in-service gastrointestinal symptoms were early manifestations of his present gastrointestinal disability. (c) Is it at least as likely as not (50 percent or greater) that the Veteran incurred additional gastrointestinal disability as a result of VA medical care, including the February 2010 colectomy? Please address the Veteran's contention that the February 2010 colectomy was "botched" and that it resulted in additional damage to his gastrointestinal system. If additional disability exists, the examiner is to note the nature of such additional disability? (d) If additional disability exists, is it at least as likely as not (50 percent or greater) that such was due to carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA? (e) If additional disability exists, is it at least as likely as not (50 percent or greater) that such was due to an event not reasonably foreseeable? A complete rationale must be provided for all opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 3. Readjudicate the issue of entitlement to a TDIU in light of the grant of service connection for degenerative arthritis of the lumbar spine. Should the Veteran not meet the schedular percentage threshold for a TDIU, consider whether the Veteran's claim warrants referral to the Director, Compensation Service, for extraschedular consideration, per 38 C.F.R. § 4.16(b). 4. If the benefit sought on appeal remains denied, issue a supplemental statement of the case before returning the case to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). All claims remanded for additional development or other appropriate action must be handled expeditiously. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs