Citation Nr: 21062020
Decision Date: 10/06/21	Archive Date: 10/06/21

DOCKET NO. 17-36 177
DATE: October 6, 2021

ORDER

Entitlement to service connection for irritable bowel syndrome (IBS), is granted.

REMANDED

Entitlement to service connection for hypertension is remanded.

Entitlement to service connection for sleep apnea (also claimed as respiratory condition), to include on a secondary basis, is remanded.

Entitlement to an initial disability rating in excess of 10 percent for a lumbar strain with lumbosacral degenerative joint disease (back disability) is remanded.

FINDING OF FACT

The Veteran has eligible Persian Gulf service and has a diagnosis of IBS.

CONCLUSION OF LAW

The criteria for service connection for IBS are met. 38 U.S.C. §§ 1110, 1117, 1118, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from December 1990 to May 1991, from February 2004 to February 2005, and from May 2017 to June 2018, with additional service in the Army Reserves. The Veteran's DD-214 and other military personnel records show she was awarded, among other recognitions, the Kuwait Liberation Medal.

This matter comes before the Board of Veteran's Appeals (Board) from a May 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This appeal was perfected by the filing of a completed Form 9 in July 2017 and was certified to the Board in January 2018.

In June 2021, the Veteran's representative submitted a letter titled "Notice of Withdrawing Representation." This notice of withdrawal is interpreted by the Board as a motion to withdraw representation. The motion to withdraw was presented after the appeal was filed and certified to the Board, thus, Rule 6 applies. The Board finds the motion to withdraw representation does not comply with Rule 6, to include giving good cause and the signed statement certifying that the Veteran has been sent copy of the motion by first-class mail. 38 C.F.R. § 20.6 (formerly § 20.608) (2018). Accordingly, the motion is denied, and the attorney remains the representative of record. Furthermore, the Veteran has not indicated in any correspondence with VA that she no longer wishes to be represented by her attorney of record, nor has she revoked the power of attorney on behalf of her representative implicitly by executing a new power of attorney.

Service treatment records and the duty to assist

As a threshold matter, it is noted that the Veteran's service treatment records (STRs) appear incomplete. There are almost no STRs for the period from 1990 to 2009 and the available STRs in the claims file cover an approximate period from March 2010 to 2018. Notably, there is one document for the Veteran's active-duty service in 1990 to 1991 and no records for the active-duty period of service from February 2004 to February 2005. 

In May 2014, the Veteran was sent a letter regarding the efforts that had been made to obtain her STRs from the 75th MC HSP DET 28. This detachment appears to be the detachment the Veteran was assigned to during her period of active-duty service from February 2004 to February 2005. See DD214 for that period of active-duty service. The May 2014 letter informed the Veteran that it had been determined that these records could not be located and were therefore unavailable for review. The letter further explained that all efforts to obtain the needed information had been exhausted and that further attempts to obtain the records would be unsuccessful. See VA Development letter of May 2014. 

In August 2018, STRs that were not previously of record were associated with the claims file, along a certification from the Army Records Processing Center that after a thorough review of all known systems, all available records had been provided and that no further records existed for the Veteran. See DD Form 2963, Service Treatment Records (STR) Certification, dated August 2018. Records were also associated with the claims file in September 2018, December 2018, and May 2020.

VA's duty to assist requires it to make as many requests as necessary to secure relevant Federal records, to include service treatment records. See 38 U.S.C. § 5103A (c); 38 C.F.R. § 3.159 (c)(2). VA will end its efforts to obtain records from a Federal department or agency only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile. 38 C.F.R. § 3.159 (c)(2).

A review of the claims file demonstrates a formal finding has not been made on the unavailability of the Veteran's complete service treatment records. See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005).

It is noted that the Veteran was notified in the VA Development letter of May 2014 that records from the 75th MC HSP DET 28 were unavailable for review. However, this development letter of May 2014 does not show that exhaustive efforts had been made to obtain the outstanding records, as STRs were later associated with the claims file in 2018. Notably, prior to the May 2014 letter, two attempts to obtain the Veteran's medical records from the 75th MC HSP DET 28 were made by the AOJ in December 2013 and in January 2014. However, no response from the detachment was received. AOJ also attempted to obtain these records from another US Army Reserve office in Tuscaloosa, AL, in April 2014, but no response to the request was received. The claims file also shows an unsuccessful attempt to obtain the Veteran's STRs from the NPRC prior to the May 2014 Development letter. The NPRC PIES response, in July 2013, noted that no records could be found in Code 13 and suggested the AOJ to use DPRIS to obtain the records. It is noted the request for records from the NPRC PIES only included the Veteran's period of service from 1990 to 1991 and did not include her maiden name. See NPRC PIES response of July 2013. Further, it is unclear if the NPRC's suggestion to request the records through DPRIS was attempted prior to the May 2014 Development letter.

Given that 75th MC HSP DET 28 is a military detachment, the Board finds the AOJ did not fulfill its duty to assist by making as many requests as are necessary to obtain these records, as there is no indication that they are unavailable or that further attempts to obtain them would be futile. See 38 C.F.R. § 3.159 (c)(2). Rather, the requests to the detachment were simply not responded to, and it is unclear whether these records were requested from alternative resources. Accordingly, a remand is required to attempt to obtain these records in accordance with VA regulation. See id. 

Further, STRs that were not previously of record were associated with the claims file in August 2018, along a certification from the Army Records Processing Center that after a thorough review of all known systems, all available records had been provided and that no further records existed for the Veteran. This certification noted that the bulk of the STRs is electronic and that there is minimal paper in the STRs. The certification also noted that "after searching with all due diligence within the time frame permitted it is determined that the service treatment record is absent. Medical record RCVD is all AHTLA. The medical STR is accounted for in the ALTHA section and/or HRR." (AHLTA: records military treatment facilities (MTFs) transfer into the Healthcare Artifacts and Images Management Solution (HAIMS) from the Armed Forces Healthcare Longitudinal Technology Application.) It is noted that this certification did not note the specific "time frame permitted" used to conduct the search that resulted in the certification. The records associated with the claims file at the same time of this certification only cover an approximate time frame from March 2010 to July 2018. It is unclear from the certification whether an attempt to obtain the Veteran's STRs covering the period from 1990 to 2010 was made.

Additionally, a new request for records from DPRIS was associated with the claims file in December 2018. That same month, some of the Veteran's military personnel records were associated with the claims file, but no additional STRs. 

Thus, while the RO has made efforts to obtain the Veteran's outstanding STRs, there remains doubt as to whether further efforts to obtain any outstanding records would be futile, as no formal finding of unavailability has been made for the outstanding STRs covering an approximate period from 1990 to March 2010, that includes the Veteran's service in the Reserves and active-duty periods. 38 C.F.R. § 3.159 (c)(2). Upon remand, the RO should complete any additional development to obtain any outstanding STRs- to include any new request for records from the appropriate sources, determine whether all efforts to obtain the Veteran's complete STRs have been exhausted, and issue a formal finding of unavailability pertaining to any remaining outstanding STRs. The formal finding of unavailability should clearly note the requests for records that have been completed and the time frames such requests covered, to include a clarification as to the "time frame permitted" referenced in the August 2018 certification by the Army Records Processing Center. If clarification as to the "time frame permitted" referenced in the August 2018 certification cannot be provided, the RO should obtain a new certification.

When the service records are incomplete, lost, or presumed destroyed through no fault of the claimant, VA has a heightened duty to assist in the development of the case. See Marciniak v. Brown, 10 Vet. App. 198, 200 (1997), citing O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).

The Board finds that sufficient evidence is of record to adjudicate the Veteran's claim for IBS. However, the other claims will be addressed in the remand section of this decision, as further development is necessary prior to their adjudication.

1. Entitlement to service connection for irritable bowel syndrome (IBS)

The Veteran seeks service connection for IBS. In favor of her claim, she asserts that while deployed in 1991, she developed severe diarrhea and IBS, after experiencing insect bites and "sand fly fever." She described her symptoms as severe, sudden, diarrhea and cramping- often with little control. She further noted the condition has been treated symptomatically since that time period. See statement of July 2013. 

Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, the three-element test for service connection requires: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (a).

In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154 (a).

Alternatively, service connection is warranted pursuant to 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 if a Veteran presents evidence (1) that he or she is a Persian Gulf Veteran; (2) who exhibits objective indications of chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed in paragraph (b) of 38 C.F.R. § 3.317 ; (3) which became manifest either during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more no later than December 31, 2021; and (4) that such symptomatology by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317 (a).

For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multisymptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117 (d) warrants a presumption of service-connection. Irritable bowel syndrome (IBS) is a functional gastrointestinal disorder that constitutes a medically unexplained chronic multisymptom illness within the meaning of 38 C.F.R. § 3.317 and thus a chronic qualifying disability under 38 U.S.C. § 1117.

The Veteran's DD214 shows she served in Southwest Asia from January 1991 to April 1991 and that she was awarded the Kuwait Liberation Medal. Thus, she is a Persian Gulf Veteran and the provisions of 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 apply.

The available records show that in April 1991, the Veteran reported sand fly fever and gastroenteritis as "diseases or injuries incurred in the Southwest Asia Region". She also marked "yes" regarding having stomach or belly pain, nausea, diarrhea, or bloody bowel movements, but did not specify the specific symptom(s) she was experiencing. See Southwest Asia Demobilization/Redeployment Medical Evaluation, dated April 1991, submitted by the Veteran, and associated with the claims file in July 2013. There are no other STRs of record for this period of service. 

VA medical records for December 2012 note she reported "explosive diarrhea." See VA medical records for December 2012.

In January 2014, the Veteran was administered an Intestinal Conditions Disability Benefits Questionnaire (Intestinal Conditions DBQ). The examiner that completed the examination noted a diagnosis of chronic diarrhea. At this examination, the Veteran reported that her IBS was related to having sand fly fever in 1991. She explained that after getting sick, everything would "run through [her]" and that she learned quickly that if she did not eat, she would not develop cramps or diarrhea. She takes Imodium, as needed, before going out and sometimes uses Mylicon to treat gas.  As to symptoms, the examiner noted diarrhea, with a frequency of 5 days out of 7 days, and cramps, described as very sharp and pulling. See Intestinal Conditions DBQ of January 2014. 

Following the examination, the examiner determined that she was unable to provide an opinion on the likely etiology of the condition without resorting to speculation. She explained that the evidence of record was silent for objective evidence of the claimed condition and that there was only one STR document from April 1991, completed by the Veteran herself. She also noted that there were no medical records from 1991 to 2012 relating to IBS nor entrance or separation exams for the Veteran's subsequent periods of active duty. Notwithstanding she noted that medical literature supported postinfectious IBS, and that if the claims file showed evidence of an objective diagnosis, the examiner would opine that the condition is at least as likely as not caused by the gastroenteritis that occurred in 1991. See Intestinal Conditions DBQ of January 2014. 

In April 2016, VA medical records show the Veteran was seen by a gastroenterologist for her gastrointestinal symptoms or IBS. The Veteran reported having IBS since the 1990s, and that her IBS manifested mainly with diarrhea- with up to 6 loose, watery, bowel movements per day. The Veteran noted the condition has worsened over the years and occurs several days per week. She also reported lower abdominal cramping associated with the diarrhea. The gastroenterologist noted "IBS-diarrhea predominant" and ordered a colonoscopy. In September 2016, the Veteran was notified that her colonoscopy results were normal and that her symptoms were suspected to be related to IBS. See VA medical records for April 2016 and September 2016. 

STRs for her most recent period of active duty, from May 2017 to June 2018, note the Veteran complained of diarrhea in August 2017 and in December 2017 she reported having noticed an increase in her IBS symptoms since her deployment. STRs for March 2018 and April 2018 also note the Veteran complained of abdominal pain and diarrhea. Additionally, the Veteran reported her symptoms of IBS during deployment and diarrhea in the report of medical history for separation, dated June 2018. See STRs associated with the claims file in August 2018.

Based on all of the above, and resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for IBS is warranted on a presumptive basis.

First, the Veteran is a Persian Gulf Veteran, and thus presumptive service connection is available for IBS. Secondly, it is noted that she has an IBS diagnosis. The Board acknowledges that the Intestinal Conditions DBQ of 2014 only noted a diagnosis of chronic diarrhea. However, VA records for 2016 show that the Veteran's symptomatology was found by a gastroenterologist to be due to her IBS- as diagnostic testing did not reveal an alternate diagnosis. Thus, there is objective evidence of record regarding the Veteran's IBS diagnosis. 

Thirdly, resolving reasonable doubt in the Veteran's favor, the Board finds that her condition became manifest during active military service in the Southwest Asia theater of operations during the Persian Gulf War. The Board acknowledges that the claims file only contains a subjective report by the Veteran in the Southwest Asia Demobilization/Redeployment Medical Evaluation of April 1991 of having gotten sick with sand fly fever and developing gastroenteritis while deployed, in support of this conclusion. Notwithstanding, the Veteran is a nurse practitioner with over 25 years of experience and served in such capacity during her periods of service. As such, the Board finds her competent to provide not only a description of her symptomatology, but also to state that her gastrointestinal condition had its onset in service after getting sick with sand fly fever. Additionally, absent probative evidence to the contrary, the Board finds her statements as to getting sick with sand fly fever and developing gastrointestinal symptomatology while deployed in 1991 credible, as her statements are consistent with the places, types, and circumstances of her service. 38 U.S.C. § 1154 (a). Thus, resolving reasonable doubt in the Veteran's favor, the Board finds that the record contains competent and credible testimony by the Veteran, a nurse practitioner, indicating the onset of gastrointestinal issues while she was deployed overseas in 1991. Not only is the Veteran competent to report signs and symptoms of the claimed disability, the Medical Evaluation of April 1991 shows her report of having a gastrointestinal condition during her deployment. See Gutierrez v. Principi, 19 Vet. App. 1, at 8-9 (2004). The statements by the Veteran as to the onset of her symptomatology and condition are afforded high probative value.

Thus, the probative evidence of record establishes that the Veteran has IBS that manifested with chronic diarrhea and that the condition had its onset during her period of service in Southwest Asia.

Absent probative evidence to the contrary and resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for IBS with chronic diarrhea is warranted on a presumptive basis pursuant to 38 U.S.C. § 1117, as the evidence of record supports the finding that her IBS had its onset and manifested with symptomatology during her active-duty service in 1991 which has continued ever since. 38 C.F.R. § 3.317.

REASONS FOR REMAND

1. Entitlement to service connection for hypertension is remanded.

The Veteran seeks service connection for hypertension. The STRs available in the claims file show that she reported having hypertension in periodical assessments as early as the year 2010. See STRs.

Her post-service medical records show that she reported having hypertension since 2004 and that she takes medication for the condition. See medical records for December 2012. 

As previously noted, the Veteran served on active duty from February 2004 to February 2005. However, there are no STRs pertaining to this period of service available in the claims file. Additionally, there are no other medical records for this period of service. Thus, it is unclear if the Veteran's hypertension was diagnosed prior to active service, during active service or otherwise after active service. 

The Board acknowledges that the Veteran's period of service from February 2004 to February 2005 may correspond to her service with the 75th MC HSP DET 28. See DD214 for that period of service. The Board further recognizes that in May 2014, VA notified the Veteran that records from the 75th MC HSP DET 28 could not be located and therefore were unavailable for review. The letter also noted that "all efforts to obtain the needed information have been exhausted and [...] that further attempts to obtain the records would be unsuccessful. See Development letter of May 2014. However, as explained in the introduction of this decision, the Board has found that the May 2014 development letter did not show that that all exhaustive efforts had been made to obtain the outstanding records.

Further, the RO has not made a formal finding as to the unavailability of such records or whether further efforts to obtain those and other outstanding records would be futile.

Accordingly, the Board finds the matter must be remanded for further attempts to obtain the Veteran's outstanding STRs for this period of service, as these outstanding records may aid the Veteran in substantiating her claim of service connection for hypertension. The Veteran should also be advised as to alternative evidence she may present in support of the service connection claim if her STRs for this period of service are deemed unavailable.

2. Entitlement to service connection for sleep apnea (also claimed as respiratory condition), to include on a secondary basis, is remanded.

The Veteran seeks service connection for sleep apnea. In favor of her claim, she asserts that while deployed in 1991, she experienced multiple sinus infections, and almost constant postnasal drainage. She further asserted that she was also noted to snore frequently while sleeping, which has continued after her return from deployment and even after undergoing an uvulectomy. She noted she was diagnosed with sleep apnea following a sleep study and that the condition has worsened over time. See statement of July 2013.

In July 2011, the Veteran was seen by the physician that diagnosed her with sleep apnea for a follow-up. In pertinent part, the physician noted that the Veteran had been "using her allergy medication as needed and continued to be bothered by snoring and daytime fatigue." See medical records for July 2011.

In January 2014, a VA examiner opined that the Veteran's sleep apnea is less likely as not caused by or a result of the sinus infections and drainage that occurred in April 1991. In favor of this opinion the examiner noted the pathophysiology of sleep apnea and explained that most patients with sleep apnea demonstrate upper airway obstruction, either at the level of the soft palate (nasopharynx) or at the level of the tongue (oropharynx). The examiner concluded that the Veteran's anatomy contributes to her condition and that sinus infections do not cause the pathophysiology associated with sleep apnea. See medical opinion of January 2014. 

This January 2014 VA medical opinion does not fully address the theory of entitlement for direct service connection. Notably, the examiner determined that the Veteran's anatomy contributes to her condition and that sinus infections do not cause the pathophysiology associated with sleep apnea. However, the examiner did not opine whether the Veteran's reported symptomatology of snoring that has continued since her return from deployment, as noted in the July 2013 statement, is consistent with a finding that the Veteran's sleep apnea had its onset in service, or whether otherwise the condition is at least as likely as not related to the Veteran's service. As such, an addendum medical opinion addressing direct service connection must be obtained.

Additionally, the Board finds that the July 2011 note by her physician and the Veteran's statement of July 2013 seem to suggest an association between the Veteran's sleep apnea and her allergies and/or her sinus infections. The Veteran is service connected for allergic rhinitis and for sinusitis. Accordingly, the matter must be remanded to obtain a medical opinion that addresses whether the Veteran's service-connected allergic rhinitis and/or sinusitis cause or aggravate her sleep apnea. 

3. Entitlement to a disability rating in excess of 10 percent for a lumbar strain with lumbosacral degenerative joint disease (back disability) is remanded.

The Veteran seeks an initial disability rating in excess of 10 percent for her service-connected back disability. In her notice of disagreement (NOD), she asserted that her back disability warrants a 20 percent disability rating. See NOD of July 2014.

In September 2018, the Veteran was administered a Back Conditions Disability Benefits Questionnaire (Back DBQ). The examiner noted that the Veteran's condition flares up "about 1-2 times a month" and that during a flare the Veteran "will be immobile and have to be in recliner or bed for 24-48 hours." An abnormal range of motion was noted with forward flexion limited to 60 degrees, extension to 0 degrees, right lateral flexion to 30 degrees, left lateral flexion to 20 degrees, right lateral rotation to 25 degrees and left lateral rotation to 20 degrees. Pain was noted on examination and caused functional loss. No additional information pertaining to the Veteran's flares, nor additional information pertaining to any loss of range of motion following repetitive use, was provided by the examiner. See Back DBQ of September 2018.

In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Court further explained that, in the event an examination is not conducted during a flare-up, the "critical question" in assessing the adequacy of the examination was "whether the examiner was sufficiently informed of and conveyed any additional or increased symptoms and limitations experienced during flares." Id. at 34 (quoting Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011)).

In the present case, while the September 2018 Back DBQ contains a notation that during a flare the Veteran will be immobile for 24-48 hours and that such flares occur 1 to 2 times per month, the Board finds there is not sufficient information pertaining to the functional impairment the Veteran experiences with flares of her back condition or following repetitive use to allow for adjudication of the increased rating claim. Therefore, a new examination is necessary pursuant to Sharp. 

The matters are REMANDED for the following actions:

1. Attempt to obtain the Veteran's outstanding STRs. If following attempts, any outstanding STRs are deemed or remain unavailable, a formal finding of unavailability must be prepared and associated with the claims file. The formal finding of unavailability should clearly note the requests for records that have been completed and the time frames such requests covered. Notify the Veteran regarding any unavailable records pursuant to 38 C.F.R. § 3.159 (c) and invite her to submit any evidence that would aid her in substantiating her claims.

a. It is noted that the Veteran served using her maiden name prior to 1993. See personnel records which show the Veteran requested a change in her name because of her marriage. Thus, the request for outstanding STRs for that period of service should include the Veteran's maiden name.

b. Efforts to obtain the Veteran's STRs for the period of active-duty service from February 2004 to February 2005 should be clearly documented in the claims file. The Veteran reported she has had hypertension since 2004, which raises the possibility that the Veteran's outstanding STRs for that period may aid her in substantiating her claim of service connection for hypertension. 

c. Clarify the "time frame permitted" referenced in the August 2018 certification by the Army Records Processing Center. If the time frame used for the certification cannot be clarified, obtain a new certification. The time frame used in the search to certify the completeness of the Veteran's STRs should be noted in the Formal Finding of Unavailability as to any STRs that remain outstanding. 

2. Update VA medical records.

3. After the Veteran's outstanding STRs have been obtained or deemed unavailable; schedule the Veteran for an examination and obtain a medical opinion pertaining to her hypertension, if the evidence of record remains insufficient to grant the benefit sought. The examiner is asked to opine:

a. Whether it is at least as likely as not that the Veteran's hypertension had its onset in active-duty service or within one year of service discharge, or is otherwise etiologically related to her service.

Diagnostic testing deemed necessary by the examiner to provide the requested opinion should be accomplished.

4. After the Veteran's outstanding STRs have been obtained or deemed unavailable; obtain an addendum medical opinion addressing direct service connection and obtain a medical opinion addressing secondary service connection pertaining to the Veteran's sleep apnea. The examiner is asked to opine:

a. (direct service connection) Whether it is at least as likely as not that the Veteran's sleep apnea had its onset during her active-duty service or otherwise is related to her service.

i. In rendering this opinion, the examiner is asked to consider the Veteran's statement of July 2013 of having been noted to snore frequently while sleeping, and the available medical records.

b. (secondary service connection) Whether the Veteran's sleep apnea is at least as likely as not:

i. caused by her service-connected allergic rhinitis and/or sinusitis or,

ii. aggravated by her service-connected allergic rhinitis and/or sinusitis.

iii. Both causation and aggravation must be discussed by the examiner in the opinion regarding secondary service connection. 

In the context of secondary service connection, aggravation means "any increase in disability." See Allen v. Brown, 7 Vet. App. 439, 448 (1995).

5. Schedule the Veteran for an examination pertaining to her back disability, to determine the current severity of her condition, to include the impact her flareups have on her functional ability and any additional limitation she may experience following repetitive use. The examiner is asked to describe with sufficient detail the Veteran's flares and/or any functional loss she experiences with such flares and/or following repetitive use. The examiner should note whether pain or other manifestations during flare-ups or with repeated use could significantly limit the functional ability of her spine. The examiner should portray the degree of any additional range-of-motion loss due to repeated use or during flare-ups. If no estimate can be provided, the examiner should explain why.

If the Veteran is not suffering from a flare-up of her back disability at the time of the examination, the examiner must attempt to ascertain information, such as frequency, duration, characteristics, severity, and functional loss, regarding any flare-ups and to estimate the functional impact of any flare-ups in terms of range of motion on the basis of that information.

If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional 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 that particular question(s).

6. After completing the above requested actions, and any additional notification and/or development deemed warranted, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, furnish to the Veteran and her representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration.

 

 

KRISTI L. GUNN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	B. Gonzalez-Maldonado

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.