Citation Nr: 20007162 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 17-28 838A DATE: January 28, 2020 ORDER A 30 percent rating, but no higher, for irritable bowel syndrome (IBS) is granted. REMANDED Service connection for chronic obstructive pulmonary disease (COPD) is remanded. Service connection for a sleep disability is remanded. Service connection for gastroesophageal reflux disease (GERD) is remanded. Service connection for erectile dysfunction is remanded. Service connection for joint pain of ankles, knees, lower legs, shoulders, arms, and wrists is remanded. FINDING OF FACT The evidence is at least in equipoise as to whether, during the entire appeal period, the Veteran has been experiencing severe symptoms of diarrhea with more or less constant abdominal distress. CONCLUSION OF LAW Resolving all reasonable doubts in the Veteran’s favor, during the entire appeal period, the criteria for a 30 percent rating, but no higher, for IBS are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.114, Diagnostic Code 7319. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1980 to October 1995, to include service in the Southwest Asia Theater of operations during the Persian Gulf War. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from January 2015 and February 2016 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether staged ratings are warranted for distinct periods of time. A rating in excess of 10 percent, prior to October 9, 2019, for IBS The legal criteria The Veteran’s IBS is currently evaluated as 10 percent disabling prior to October 9, 2019, and as 30 percent disabling thereafter, under Diagnostic Code 7319. The 30 percent rating is the highest schedular rating under that diagnostic code. He generally contends that he is entitled to a 30 percent rating during the entire appeal period. See December 2019 Statement. Under Diagnostic Code 7319, irritable colon syndrome (including spastic colon, mucous colitis) warrants a noncompensable rating if mild and disturbances of bowel function with occasional episodes of abdominal distress. A 10 percent rating is warranted if moderate and frequent episodes of bowel disturbances with abdominal distress. A 30 percent rating is warranted if severe, with diarrhea or alternating diarrhea and constipation, with more or less constant abdominal distress. 38 C.F.R. § 4.114, Diagnostic Code 7319. Descriptive words “slight,” “moderate” and “severe” as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all the evidence for “equitable and just decisions.” 38 C.F.R. § 4.6. Analysis The Board resolves all reasonable doubts in the Veteran’s favor and finds that he is entitled to a 30 percent rating during the entire appeal period (i.e. since August 2013 to present). The totality of the evidence of record suggests that the Veteran’s IBS symptoms have been manifested by severe diarrhea with abdominal distress during the entire appeal period. Slightly prior to the appeal period, in a March 2012 Intestinal Disability Benefits Questionnaire (DBQ), the examiner found that the Veteran experienced diarrhea and fecal urgency “4-5x/[day]” and that the Veteran had episodes of bowel disturbances with abdominal distress. A March 2014 DBQ examiner also noted the frequent alternation to “watery stools” and “urgent [bowel movement] after eating . . . [having] several [bowel movements] a day,” which suggests severe and frequent diarrhea symptoms on a daily basis. A December 2014 CT scan of the abdomen revealed “[the Veteran’s] [e]ntire colon filled with stool.” The examiner assessed that “[d]iarrhea appear[ed] to be overflow” at the time.” Further, a March 2015 VA emergency department note documents that the Veteran sought urgent care for for diarrhea, where he was experiencing “up to 12 loose stools per day” at the time. In a January 2016 statement, the Veteran’s spouse attested to the severe degree of the Veteran’s IBS symptoms, such that he “never knows if he is going to make it to the bathroom when he feels the urge to go” and the general pain and weakness he has been experiencing at the time. Additionally, May 2017 VA treatment notes document the provider’s observation that the Veteran’s abdomen was “distended” and “firm” with bowel sounds at the time, suggesting abdominal distress. These IBS symptoms present a severe disability picture that warrants a 30 percent rating during the entire appeal period. As such, resolving all reasonable doubts in the Veteran’s favor, the Board finds that a 30 percent rating is warranted for his service-connected IBS during the entire appeal period. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.114, Diagnostic Code 7319. The Board notes that the 30 percent rating is the highest rating available for IBS, and this disability is specifically listed in the VA rating schedule. Therefore, a higher schedular rating for IBS is not available. See Copeland v McDonald, 27 Vet. App. 333 (2015). REASONS FOR REMAND 1. Entitlement to service connection for COPD The Veteran has several contentions as to how his COPD is due to his service. He has contended that it is due to exposure to environmental hazards coincident with his service during the Gulf War. Personnel records confirm such service. He also has said that it could be due to asbestos. In this regard, a November 1984 service treatment record suggests in-service asbestos exposure. A February 1984 service treatment note also documents that the Veteran was involved in “hazardous waste operations or emergency response” while performing duties in system organization maintenance. The Veteran has also contended that it is due to his tobacco use, which was a result of his service-connected posttraumatic stress disorder (PTSD). While service connection is generally precluded for disabilities caused by using tobacco, VA’s General Counsel has held that neither 38 U.S.C. § 1103(a) nor 38 C.F.R. § 3.300 bars a finding of secondary service connection for a disability related to a veteran’s use of tobacco products after his or her service where that disability is proximately due to a service-connected disability that is not service-connected on the basis of being attributable to the veteran’s use of tobacco products during service. See VAOGCPREC 6-2003. Opinions in January 2016 and October 2019 find against a nexus to service, essentially attributing the Veteran’s COPD to his history of tobacco use. However, they are deficient. Neither provided an opinion addressing the Veteran’s contentions that his tobacco use was caused or aggravated by his service-connected PTSD or that the claimed COPD was related to his exposure to environmental hazards and/or asbestos during his service. A remand is necessary for an addendum addressing these questions. While on remand, the RO should attempt to verify the reported in-service exposure to asbestos. The examiner who reviews the file for this opinion should consider an article, submitted by the Veteran, discussing the correlation between asbestos and COPD. See July 2017 Statement accompanied by an article. 2. Entitlement to service connection for a sleep disability The Veteran contends that he has a sleep disability due to service, to specifically include as secondary to his service-connected PTSD. He reports that “[his] wife says [he] quits breathing in [his] sleep and snore[s],” see November 2015 Claim, and that “his sleep patterns worsened after he began taking his mental health medication,” see December 2019 Statement. A January 2016 DBQ examiner found that there was no diagnosis of sleep apnea at the time, but a November 2019 VA sleep clinic note documents diagnoses for obstructive sleep apnea and sleep-related hypoxemia. A remand is necessary for an addendum addressing whether theses current diagnoses are related to the Veteran’s service-connected PTSD and medications prescribed therefor. 3. Entitlement to service connection for joint pain of ankles, knees, lower legs, shoulders, arms, and wrists The Veteran contends that he has chronic joint pain of the ankles, knees, lower legs/feet, shoulders, arms, and wrists due to undiagnosed illnesses or other qualifying chronic disability under 38 U.S.C. § 1117. See August 2013 Claim. Given his service in the Southwest Asia Theater of Operations, consideration of the provisions of 38 U.S.C. § 1117(a)(1) for objective indications of a qualifying chronic disability is warranted. The record contains December 2014 and October 2019 Gulf War DBQ reports, but neither examination contains a nexus opinion that addresses the pertinent questions for consideration of the provisions under 38 C.F.R. § 3.317, to include whether the claimed joint pain of ankles, knees, lower legs/feet, shoulders, arms, and wrists is a manifestation of undiagnosed illnesses or medically unexplained chronic multi-symptom illnesses. In this regard, in January and February 2016 statements, the Veteran’s spouse and step daughter observed that the Veteran “started complaining about muscle weakness [and] joint pain” that had worsened since his service. To the extent that the October 2019 DBQ examiner rendered negative nexus opinions for the claimed right ankle, left foot, right knee, and right shoulder disabilities on a direct basis, the examiner did not consider the December 2014 DBQ examiner’s remark suggesting that the claimed ankle, knee, and shoulder joint pain disabilities may be due to service, given that they are “naturally occurring process especially considering the Veteran’s age and military experience.” A remand is necessary for addendums addressing these deficiencies. 4. Entitlement to service connection for GERD and erectile dysfunction The Veteran contends that he has GERD and erectile dysfunction due to his service, to include as secondary to his service-connected PTSD and IBS, as well as medications prescribe therefor. See November 2015 Claims. There is currently no medical opinion of record addressing whether the claimed GERD and erectile dysfunction were caused or aggravated by the Veteran’s PTSD and medications prescribed for his PTSD. The record also does not contain an opinion addressing the Veteran’s erectile dysfunction claim on a direct basis. A remand is necessary for an addendum addressing these questions. The matters are REMANDED for the following action: 1. Verify the Veteran’s reported in-service exposure to asbestos associated with his military occupational specialty in system organization maintenance, especially considering the February and November 1984 service treatment records suggesting possible exposure to asbestos or hazardous materials. See VBMS, document labeled STR-Medical, receipt date 8/23/2019, pages 17-18 of 204. 2. Obtain an opinion from an appropriate clinician regarding the claimed COPD. (A) The clinician is asked to opine whether the Veteran’s COPD was at least as likely as not (a 50 percent or greater probability) related to the Veteran’s exposure to environmental hazards during the Gulf War, or alternatively, to exposure to asbestos (if verified). (B) The clinician should opine whether the Veteran’s tobacco use was at least as likely as not (50 percent or greater probability) caused or aggravated beyond its natural progression by the service-connected PTSD. Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected conditions. The clinician should consider all pertinent evidence of record, to include an article, submitted in July 2017, that suggests a possible link between COPD and asbestos exposure (if verified). See VBMS, document labeled Correspondence, receipt date August 2, 2017, pages 9-10 of 13. The clinician is asked to provide the underlying reasons for all opinions expressed and is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. 3. Obtain an opinion from appropriate clinicians regarding the claimed GERD, erectile dysfunction, and sleep disability. (A) The clinician should confirm the current diagnose for GERD, erectile dysfunction, and sleep disability. For the sleep disability claim, the clinician should consider the November 2019 diagnoses for obstructive sleep apnea and sleep-related hypoxemia. See VBMS, document labeled CAPRI, receipt date 12/11/2019, page 23-24 of 790. (B) The clinician should opine whether the Veteran’s erectile dysfunction and sleep disability were at least as likely as not (a 50 percent or greater probability) related to the Veteran’s service. (C) The clinician should opine whether the Veteran’s GERD, erectile dysfunction, and sleep disability were at least as likely as not (50 percent or greater probability) caused OR aggravated beyond its natural progression by the service-connected PTSD or medications prescribed therefor. Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected conditions. The clinician is asked to provide the underlying reasons for all opinions expressed and is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. 4. Obtain an opinion from an appropriate clinician regarding the claimed joint pain of the ankles, knees, lower legs/feet, shoulders, arms, and wrists, all claimed to be due to the Veteran’s Gulf War service. (A) The examiner should specifically state whether the Veteran’s claimed disabilities manifested by chronic joint pain in the ankles, knees, lower legs/feet, shoulders, arms, and wrists are attributed to known clinical diagnoses. (B) If any symptoms associated with the claimed joint pain disabilities are not determined to be associated with known clinical diagnoses, the examiner should indicate whether the Veteran has objective indications of a chronic disability resulting from an undiagnosed illness, as established by history, physical examination, and laboratory tests, that has either (1) existed for 6 months or more, or (2) exhibited intermittent episodes of improvement and worsening over a 6-month period. The examiner should also indicate whether the Veteran has medically unexplained chronic multi-symptom illnesses. (C) For each known clinical diagnosis, the examiner should render an opinion as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such disorder is related to the Veteran’s military service, to include exposure to environmental hazards coincident with his service in Southwest Asia. The examiner should specifically address the December 2014 DBQ examiner’s statement that the Veteran’s claimed ankle, knee, and shoulder joint pain disabilities may be due to service, given that they are “naturally occurring process especially considering the Veteran’s age and military experience.” The clinician is asked to provide the underlying reasons for all opinions expressed and is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Kim, 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.