Citation Nr: 21002970 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 17-24 007 DATE: January 19, 2021 ORDER Entitlement to service connection for a gastrointestinal disability, to include irritable bowel syndrome (IBS), is granted. REMANDED Entitlement to service connection for a lumbar spine disability, to include as secondary to a bilateral knee disability, is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability, to include as secondary to a left knee disability, is remanded. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) based on military sexual trauma (MST) and/or major depressive disorder, is remanded. FINDING OF FACT Resolving all reasonable doubt in the Veteran’s favor, her gastrointestinal disability had its onset during her active duty military service. CONCLUSION OF LAW The criteria for entitlement to service connection for a gastrointestinal disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from February 1996 to February 1998. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision of the Department of Veterans Affairs (VA) regional office (RO) in St. Paul, Minnesota which, in pertinent part, denied the Veteran’s claims of entitlement to service connection for a left knee disability, a right knee disability, a lumbar spine disability, IBS, and major depressive disorder. The Veteran timely appealed. The Board notes that the Veteran initially filed claims for IBS and major depressive disorder. In light of the holding in Clemons, and the Veteran’s varied gastrointestinal symptomatology and varied psychiatric diagnoses, her claims have been broadened and recharacterized as shown on the title page of this decision. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (finding that what constitutes a claim is not limited by a lay Veteran’s assertion of his condition in the application but must be construed based on the reasonable expectations of the non-expert claimant and the evidence developed in processing the claim). In September 2020, the Veteran testified before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record. Entitlement to service connection for a gastrointestinal disability, to include irritable bowel syndrome (IBS), is granted. The Veteran maintains entitlement to service connection for a gastrointestinal disability, to include IBS. The Veteran’s VA treatment records contain a diagnosis of IBS, thereby satisfying the first element of 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 military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may also be granted for a disease first diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran’s service treatment records contain complaints of symptoms including continued reflux, abdominal pain, nausea, and vomiting over the course of several months, with an ultimate diagnosis of gastroesophageal reflux disease (GERD). Thus, the Board finds that the second element of service connection has been met. At issue is whether there is a causal relationship between the Veteran’s current diagnosis and his in-service symptomatology/GERD. In April 2014, the Veteran underwent a VA examination where she complained of constant gas, cramping bloating, nausea, vomiting, and frequent episodes of bowel disturbance with abdominal pain and distress. Despite these complaints and documentation of the Veteran’s diagnosis of IBS, the examiner declined to proffer a diagnosis. When providing a medical opinion, the examiner generally detailed the differences between IBS and GERD as defined by the National Digestive Diseases Information (NDDIC), ultimately determining that any diagnosed IBS was less likely than not related to the Veteran’s military service. She did not specifically discuss the symptomatology reported by the Veteran in service or afterwards. The Board finds this opinion is inadequate for this reason. The examiner did not address the Veteran’s lay statements regarding frequency of symptomatology during and after service. Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (holding that the VA examiner’s opinion was inadequate where the examiner impermissibly ignored the appellant’s lay assertions that he had sustained a back injury during service). The Board could remand for another medical opinion. However, remand could be interpreted as a violation of 38 C.F.R. § 3.304 (c) (“The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination”) and Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (VA may not order additional development for the sole purpose of obtaining evidence unfavorable to a claimant). The Board finds that the evidence of record is at least in equipoise regarding this issue. GERD and IBS are collectively considered “diseases of the digestive system.” With such diseases, particularly within the abdomen, which, while differing in the site of pathology, they produce a common disability picture characterized by varying degrees of abdominal distress or pain, anemia, and disturbances in nutrition, as shown in the Veteran’s service and post-service treatment records, including at the April 2014 VA examination. Additionally, these conditions frequently occur in tandem. Because the Veteran has a current gastrointestinal disability, her symptoms had their onset in service, and both IBS and GERD conditions occur in the same general anatomical area and have overlapping symptomatology, the Board finds that service connection is warranted. REASONS FOR REMAND 1. Entitlement to service connection for a lumbar spine disability, to include as secondary to a bilateral knee disability, is remanded. 2. Entitlement to service connection for a left knee disability is remanded. The Veteran maintains entitlement to service connection for a left knee disability and for a lumbar spine disability. In April 2014, the Veteran underwent a VA examination where she was diagnosed with thoracolumbar sprain with radiculopathy and degenerative arthritis in both knees. The examiner was asked to opine whether the Veteran’s current lumbar spine and left knee disabilities were related to service, to include a documented in-service injury that resulted in a diagnosis of a lateral meniscus tear and several complaints of low back pain. The examiner proffered negative opinions, mainly predicated on the fact that there was no post-service documentation of longitudinal lumbar spine or left knee disabilities since separation. The Board finds that these medical opinions are inadequate to resolve the appeals for two reasons. First, lack of post-service evidence is insufficient rationale to support a negative nexus opinion. The mere absence of evidence does not equate to unfavorable evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Second, the examiner did not address the Veteran’s lay statements regarding frequency of symptomatology during and after service. Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (holding that the VA examiner’s opinion was inadequate where the examiner impermissibly ignored the appellant’s lay assertions that he had sustained a back injury during service). Once VA undertakes the effort to provide a medical examination or opinion, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). As the medical opinions provided in April 2014 concerning these issues are inadequate, new medical opinions must be obtained to address the matters at hand. Specific to the Veteran’s claim of entitlement to service connection for a left knee disability, the Board finds that there is evidence of a preexisting left knee condition that has not been considered. On remand, a VA examiner is asked to discuss this theory as well. 3. Entitlement to service connection for a right knee disability, to include as secondary to a left knee disability, is remanded. The Veteran maintains entitlement to service connection for a right knee disability as secondary to a left knee disability. As the Board has remanded the issue of service connection for a left knee disability, it must also remand this issue as they are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). 4. Entitlement to service connection for an acquired psychiatric disability, to include PTSD based on MST and/or major depressive disorder, is remanded. The Veteran maintains entitlement to service connection for an acquired psychiatric disability, to include PTSD based on MST and/or major depressive disorder. As an initial matter, as the Veteran’s claim is predicated upon MST, remand is necessary to allow VA to attempt to corroborate the Veteran’s reported stressor and to send the Veteran appropriate notification as required under 38 C.F.R. § 3.309 (f)(5). Next, pursuant to McClendon v. Nicholson, 20 Vet. App. 79 (2006), an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an “in-service event, injury or disease,” or that a disease, manifested in accordance with presumptive service connection regulations, occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. Here, the Veteran has submitted a statement from her VA psychiatrist detailing her diagnosis of PTSD and major depressive disorder and VA treatment records confirm the same. She has also proffered a statement describing alleged in-service MST and lay statements from friends describing behavioral changes in the Veteran since her military service. As the Veteran has attributed the condition to service and her psychiatrist has similarly alluded to this fact, the Board finds that there is an indication that the current disability may be related to the Veteran’s claimed MST. Finally, while the Board acknowledges the VA psychiatrist’s statement relating the Veteran’s diagnoses to past trauma during her service, no rationale for this conclusion was provided. As such, there is insufficient evidence upon which to decide this case. Thus, remand for a VA examination is also necessary. The matters are REMANDED for the following action: 1. Obtain updated, relevant VA and private treatment records and associate them with the claims file. 2. After the above has been completed to the extent possible, send the Veteran’s claims file to a VA orthopedist or another appropriate clinician to issue a medical opinion as to the nature and etiology of the Veteran’s lumbar spine and bilateral knee disabilities. The entire claims file, including a copy of this Remand, must be made available to and must be reviewed by the clinician. If the clinician determines that a new examination is necessary, one should be scheduled. Regarding the Veteran’s claimed lumbar spine disability, the clinician should address: (a.) Whether it is at least likely as not (50 percent probability or more) that the Veteran’s current lumbar spine disability was incurred in, caused by, or otherwise related to service, including as related to the documented complaints of low back pain. Concerning the Veteran’s claimed left knee disability, the clinician should address: (b.) Whether a left knee disability clearly and unmistakably (undebatably) preexisted service. (c.) If a left knee disability clearly and unmistakably preexisted service, whether a left knee disability was clearly and unmistakably not aggravated by service. (d.) If a left knee disability did not preexist service, or was not aggravated by service, whether it is at least as likely as not (50 percent probability or more) that the Veteran’s left knee disability was incurred in, caused by, or otherwise related to service, including as due to the documented January 1997 injury. If the Veteran’s left knee disability is determined to be service-connected, the clinician is asked to address: (e.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s right knee disability was caused or aggravated by her left knee disability. (f.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s lumbar spine disability was caused or aggravated by her left knee disability. In offering any opinion, the clinician must consider medical and lay evidence dated both prior to and since the filing of the claim, including the testimony presented at the September 2020 Board hearing. Further, the clinician must provide a complete rationale for any opinion rendered. If the clinician cannot provide an opinion without resorting to speculation, he or she should explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). 3. Attempt to corroborate the Veteran’s reported personal assault, described as an MST, and send the Veteran notification as required under 38 C.F.R. § 3.309(f)(5). 4. Schedule the Veteran for a VA examination that addresses her claim of entitlement to service connection for an acquired psychiatric disorder. The examiner must opine whether the evidence of record, including the Veteran’s lay statements, and the Veteran’s service records, behavioral changes, etc., corroborate the claim that a personal assault occurred in service (38 C.F.R. § 3.304 (f)(5)), and if not, the examiner should indicate whether he/she otherwise believes a personal assault occurred given the Veteran’s psychological presentation. Advise the VA examiner that VA regulations provide that evidence other than service records may be used to corroborate that an alleged assault occurred, such as evidence of behavior changes including deterioration in work performance and episodes of depression, panic attacks, or anxiety without an identifiable cause. If the examiner finds that evidence indicates that a personal assault occurred during the Veteran’s active service, the examiner must opine whether any diagnosed PTSD is at least as likely as not related to the in-service personal assault. For any other diagnosed psychiatric disability, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease, to include the claimed MST. The examiner is advised that the Veteran is competent to report symptoms, treatment, events, and injuries in service and that his assertions must be considered, along with the other evidence of record, in formulating the requested medical opinion. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Bush 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.