Citation Nr: 20002116 Decision Date: 01/09/20 Archive Date: 01/09/20 DOCKET NO. 15-43 482 DATE: January 9, 2020 ORDER Entitlement to service connection for gastrointestinal disabilities other than irritable bowel syndrome, diagnosed as diverticulitis and diverticulosis, to include residuals of a sigmoidectomy, is granted. Entitlement to an increased evaluation for service-connected cutaneous lupus erythematosus (hereinafter service-connected lupus), currently evaluated 10 percent disabling prior to July 11, 2016, and 60 percent disabling, thereafter, is dismissed. REMANDED Entitlement to an evaluation in excess of 10 percent for service-connected right knee degenerative joint disease with scars (hereinafter, service-connected right knee disability) is remanded. Entitlement to an increased evaluation for service-connected left knee degenerative joint disease with scars (hereinafter, service-connected right knee disability), evaluated noncompensably (zero percent) disabling prior to October 25, 2018, and 10 percent disabling, thereafter, is remanded. FINDINGS OF FACT 1. The most probative evidence reflects that diverticulitis and diverticulosis, to include residuals of a sigmoidectomy, were incurred during the Veteran’s active duty. 2. In testimony at an October 2019 Board hearing, and prior to the promulgation of a decision in the appeal, it was asserted that the Veteran wished to withdraw her appeal for the issue of entitlement to an increased evaluation for service-connected lupus, currently evaluated 10 percent disabling prior to July 11, 2016, and 60 percent disabling, thereafter. CONCLUSIONS OF LAW 1. The criteria to establish service connection for diverticulitis and diverticulosis, to include residuals of a sigmoidectomy, are met. 38 U.S.C. §§ 1101, 1110, 1131, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2019). 2. The criteria for withdrawal of a substantive appeal by the Veteran for the issue of entitlement to an increased evaluation for service-connected lupus, currently evaluated 10 percent disabling prior to July 11, 2016, and 60 percent disabling, thereafter, have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1996 to July 2006, to include service in Southwest Asia Theater of operations during the Persian Gulf War. This matter comes to the Board of Veterans' Appeals (Board) from a June 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with this determination, and the present appeal ensued. In an August 2015 rating decision, the AOJ proposed to reduce the evaluation assigned for the Veteran’s service-connected lupus. In response, the Veteran subsequently requested a hearing on the matter, and this was completed in June 2016. Although the AOJ proposed reduction was not implemented, a July 2016 rating decision noted that the evaluation assigned for this disability was increased from zero percent to 60 percent, effective from July 11, 2016. Curiously, the AOJ implemented this partial allowance for a second time in a September 2016 rating decision, this time correctly stating that the 10 percent evaluation was increased to 60 percent, effective from July 11, 2016. Also, in a July 2019 Decision Review Officer (DRO) decision, the AOJ increase the evaluation assigned for the Veteran’s service-connected left knee disability from zero percent to 10 percent, effective from October 25, 2018. As none of the partial allowances conveyed in the AOJ’s July 2016, September 2016, and July 2019 decision represented a full grant of the benefits sought on appeal, the issues thereafter remain in appellate status, and they have been recharacterized to reflect the “staged” evaluations created throughout the pendency of the appeal. See Hart v. Mansfield, 21 Vet. App. 505 (2007); AB v. Brown, 6 Vet. App. 35, 38-39 (1993). In October 2019, the Veteran presented testimony in support of her appeal at a Board hearing conducted by the undersigned Veterans Law Judge (VLJ) via videoconferencing equipment. A transcript of the October 2019 hearing is associated with the file. At the Board hearing, the Veteran and his representative asked the undersigned VLJ to hold the record open for 60 days so that additional evidence could be submitted. This request was granted on the record, and thus, the evidence received by the in December 2019 may be reviewed by the Board in the first instance. The Veteran has a separate appeal stream seeking to establish service connection for a right ankle disability; however, she is awaiting a separate Board hearing for that matter. As such, the Board will not undertake appellate readjudication of that issue at this time. Clarification of an issue on appeal In October 2011, the Veteran filed a claim seeking to establish service connection for “diverticulitis/diverticulosis.” The appealed issue relating to a gastrointestinal disability that is presently before stems from this October 2011 claim. In January 2016, during the pendency of the present appeal, the Veteran filed a separate claim to establish service connection for irritable bowel syndrome. In a May 2016 rating decision, the AOJ established service connection for irritable bowel syndrome; a 30 percent initial evaluation was assigned, effective from January 27, 2016. In light of the above-noted AOJ allowance and the continued pursuit of the Veteran’s October 2011 claim, the issue on appeal concerning gastrointestinal symptoms has been recharacterized as stated on the title page. 1. Entitlement to service connection for a gastrointestinal disability other than irritable bowel syndrome Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107 (b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert, 1 Vet. App. at 54. The Board has reviewed all of the evidence in the Veteran’s file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Analysis The record unambiguously reflects that the Veteran has an extensive history of experiencing gastrointestinal symptoms during and since her active duty. Based on these symptoms, diverticulosis, diverticulitis, and irritable bowel syndrome, were diagnosed, and the Veteran underwent surgery to resect part of her large intestine in February 2012 – during the pendency of the present appeal. In light of above, elements (1) and (2) to establish service connection under the theory of direct service connection have been demonstrated. As such, the crux of the Veteran’s appeal is whether the most probative evidence reflects that she has a current gastrointestinal disability other than irritable bowel syndrome that is proximately due to, or the result of service. The Veteran was provided a VA examination in May 2013, and after a review of the record and examination of the Veteran, the examiner opined that her diverticulosis and diverticulitis were less likely as not due to her service, to include in-service exposures incurred in Southwest Asia. The examiner further noted that the etiology of her in-service gastrointestinal symptoms were multifactorial and felt to be related to other acute processes that were not part of the diverticular disease process, although such began after separation. In connection with her claim to establish service connection for irritable bowel syndrome, the Veteran was provided another VA gastrointestinal examination in March 2016. After a review of the record and examination of the Veteran, the March 2016 VA examiner opined that her in-service gastrointestinal symptoms were at least as likely as not early manifestations of irritable bowel syndrome, which was diagnosed after her separation from active duty. This opinion served as the basis of the AOJ’s grant of service connection for this disease. Curiously, the March 2016 VA examiner noted the Veteran’s diagnoses of diverticulosis and diverticulitis, to include the March 2012 colon resection surgery, and it was opined that these disabilities were not related to the Veteran’s service; however, no rationale for this opinion was offered. In support of her appeal, the Veteran submitted a December 2019 statement from a VA clinician who has been overseeing her treatment at the VA gastrointestinal clinic for the past three years. After a review of the complete record and completion of weekly treatments over a three-year period, the VA clinician opined that the Veteran’s in-service gastrointestinal symptoms were early manifestations of diverticulitis, which was at least as likely as not caused by her presumed in-service exposure to toxins while stationed in the Persian Gulf. The clinician further stated that, as is usually the case in these situations, the Veteran’s early diverticulitis symptoms were misdiagnosed, and thus, the disease process progressed, ultimately resulting in the need for colon resection surgery and development of irritable bowel syndrome as a secondary disease. In reviewing these competing opinions, the Board initially observes that the March 2016 VA opinion is not supported by any rationale, and thus, is considered to be of little, if any, probative value. Further, although the May 2013 VA examiner offered a rationale for the offered opinion, such was not complete. Specifically, it is unclear how it was determined that her in-service gastrointestinal symptoms were due to other causes rather than diverticulitis and/or diverticulosis. On the other hand, the December 2019 VA clinician’s opinion is accompanied by a soundly-stated rationale which cites to specific evidence within the file and follows the Veteran’s disease process from her initial, in-service manifestations to her later development of several gastrointestinal disabilities and resulting surgery. In light of above, the Board concludes that the December 2019 VA clinician’s opinion is the most probative concerning the etiology of the Veteran’s diverticulitis and diverticulosis, to include the March 2012 colon resection surgery. As such, the nexus element necessary to establish service connection for these disabilities has been demonstrated. In sum, the most probative evidence reflects that the Veteran’s diverticulitis and diverticulosis, to include the residuals of the March 2012 colon resection surgery, were incurred during her active duty, and thus, service connection for these disabilities is warranted. 2. Entitlement to an increased evaluation for service-connected lupus, currently evaluated 10 percent disabling prior to July 11, 2016, and 60 percent disabling, thereafter Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202 (2019). Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204 (2019). In this case, prior to the promulgation of a decision, it was asserted at the October 2019 Board hearing that the Veteran wished to withdraw her appeal for the issue of entitlement to an increased evaluation for service-connected lupus, currently evaluated 10 percent disabling prior to July 11, 2016, and 60 percent disabling, thereafter. See the October 2019 Board hearing transcript at page 2. The Veteran's withdrawal was reduced to writing when the hearing testimony was transcribed, pursuant to 38 C.F.R. § 20.204. Tomlin v. Brown, 5 Vet. App. 355, 357-58 (1993). Therefore, the Veteran's October 2019 testimony has been accepted as a withdrawal of the appeal concerning this issue. See Tomlin, supra; see also 38 C.F.R. § 20.204 (2017). In light of above, the Board does not have jurisdiction to review the appeal for the issue of entitlement to an increased evaluation for service-connected lupus, currently evaluated 10 percent disabling prior to July 11, 2016, and 60 percent disabling, thereafter, and it is dismissed. REASONS FOR REMAND 1. Entitlement to an evaluation in excess of 10 percent for service-connected right knee degenerative joint disease with scars 2. Entitlement to an increased evaluation for service-connected left knee degenerative joint disease with scars, evaluated noncompensably disabling prior to October 25, 2018, and 10 percent disabling, thereafter The Veteran was most recently provided a VA examination to determine the current frequency and severity of the manifestations of her knee disabilities in October 2018. At the October 2019 hearing, the Veteran asserted that this VA examination was inadequate to evaluate her disabilities, as she was only requested to flex her knees in laying and squatting positions during the brief physical examination. It appears that the AOJ agreed that the October 2018 VA examination report contained insufficiencies, as the examiner was requested to provide addendum opinions in July 2019 concerning the Veteran’s ability to flex and extend her knees upon repetitive motion testing, during a flare-up of symptoms, and in weight-bearing and nonweight-bearing positions as per the United States Court of Appeals for Veteran’s Claims’ (the Court’s) precedential holdings in in Mitchell v. Shinseki, 25 Vet. App. 32 (2011), Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), and Correia v. McDonald, 28 Vet. App. 158, 166 (2016), respectively. Although the VA examiner provided the requested July 2019 addendum opinions, it is unclear how this was accomplished without re-examination of the Veteran. This is especially true considering that the addendum opinions were offered nearly one year after the October 2018 physical examination. In light of above, the Board concludes that the medical evidence within the October 2018 VA examination report and July 2019 addendum opinion is inadequate for the purpose of evaluating the Veteran’s service-connected knee disabilities. As such, a remand is necessary to ensure that she is provided a contemporaneous and adequate examination which addresses the severity of these disabilities under the governing laws. To ensure that the examiner is fully apprised of the Veteran’s complete disability picture, updated VA and private treatment records pertinent to these disabilities must be sought, obtained, and associated with the file. The matters are REMANDED for the following actions: 1. The AOJ must obtain and associate with the file all updated records of VA treatment. 2. The AOJ must request that the Veteran identify the names, addresses, and approximate dates of treatment for all of the non-VA health care providers who have treated her for her knee disabilities. After securing appropriate release(s) from the Veteran, the AOJ must make two attempts to obtain any identified private treatment records which are not already associated with the file or make a formal finding that a second request for such records would be futile. The Veteran must be notified of the results of the record requests. If records are not received from any source, follow the notification procedures of 38 C.F.R. § 3.159(e). 3. Thereafter, the AOJ must request that the Veteran be scheduled for appropriate VA examination(s) to evaluate her service-connected knee disabilities, to include surgical scars. The complete electronic record must be made available to, and reviewed by, the VA examiner(s) prior to conducting the examination(s). All necessary studies and tests should be conducted, to include x-ray testing of both knees. Thereafter, the VA examiner is requested to address the following: Fully describe the frequency and severity of the manifestations of the Veteran’s service-connected knee scars. Fully describe the frequency and severity of the manifestations of the Veteran’s service-connected knee disabilities. Instability and subluxation of the knees must be identified and/or ruled out. The Veteran’s knee cartilage must be fully described, as per the applicable rating criteria. *To the degree possible, it would be helpful to schedule the Veteran for a VA examination during a flare-up of her service-connected knee disabilities. *In addition to the information requested by the standard DBQ relating to the knees, the examiner must specifically address the following: - Provide findings for limitation of flexion and extension (expressed in degrees) of the Veteran’s knees during flare-ups of symptoms, after repetitive motion testing, and in weight-bearing and nonweight-bearing positions currently and retrospectively. In doing so, please review the prior VA examination reports, and based on the information therein, provide the requested findings for each examination undertaken during the pendency of the appeal. If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 4. Thereafter, the AOJ must readjudicate the issues remaining on appeal. If any benefit is not granted to the fullest extent, the Veteran and her representative must be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Scott W. Dale, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.