Citation Nr: 21064671 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 15-37 290 DATE: October 21, 2021 ORDER The appeal as to the claim of entitlement to an initial evaluation in excess of 10 percent for service-connected irritable bowel syndrome (IBS) prior to January 23, 2020, is granted. The appeal as to the claim of entitlement to an initial evaluation in excess of 30 percent for service-connected irritable bowel syndrome (IBS) since January 23, 2020, is denied. REMANDED The appeal as to the claim of entitlement to service connection for diabetes mellitus, type II, to include as due to exposure to chemical solvents, to include as due to service-connected disabilities, is remanded. The appeal as to the claim of entitlement to service connection for obstructive sleep apnea (OSA), to include as due to exposure to chemical solvents, to include as due to service-connected disabilities, is remanded. The appeal as to the claim of entitlement to service connection for hypogonadism, to include as due to exposure to chemical solvents, to include as due to service-connected disabilities, is remanded. The appeal as to the claim of entitlement to service connection for hypertension, to include as due to exposure to chemical solvents, to include as due to service-connected disabilities, is remanded. FINDINGS OF FACT 1. From October 2, 2014, to January 23, 2020, the Veteran's disability picture manifested as severe disturbances of bowel function with frequent episodes of alternating diarrhea and constipation with constant abdominal distress manifested by constant cramping. 2. From January 23, 2020, to present, the Veteran's disability picture manifested with severe alternating diarrhea and constipation, with constant abdominal distress manifested by cramping, nausea, and vomiting. CONCLUSIONS OF LAW 1. The criteria for establishing an initial evaluation of 30 percent, but no higher, for service-connected IBS prior to January 23, 2020, have been met. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. § 4.114, Diagnostic Code 7319 (2020). 2. The criteria for establishing an initial evaluation in excess of 30 percent for service-connected IBS from January 23, 2020, have been met. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. § 4.114, Diagnostic Codes 7319, 7346 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Air Force from May 1997 to May 2001. His service was under honorable conditions. The matters are on appeal from an April 2015 rating decision. In December 2018, the Veteran testified at a video conference hearing before a Veterans Law Judge (VLJ). A written transcript of this hearing has been prepared and associated with the evidence of record. The Veteran was informed that the VLJ who held the December 2018 hearing left the Board, and the Veteran waived an additional hearing. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Increased Rating Legal Criteria Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2020). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321 (a), 4.1 (2020). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In accordance with 38 C.F.R. §§ 4.1, 4.2 (2020) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities at issue. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disability. In both initial rating claims and normal increased rating claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to an initial evaluation in excess of 10 percent for service-connected IBS prior to January 23, 2020. See argument Below at 2 2. Entitlement to an initial evaluation in excess of 30 percent for service-connected IBS since to January 23, 2020. In the April 2015 rating decision on appeal, the AOJ granted service connection for the Veteran's IBS, and assigned a 10 percent evaluation pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7319, effective October 2, 2014, the date of claim. In a January 2021 rating decision, the AOJ increased the evaluation from 10 percent to 30 percent disabling, effective January 23, 2020, pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7319. The Veteran contends that his IBS disability manifested to a degree that more nearly approximates an evaluation in excess of 10 percent prior to January 23, 2020, and in excess of 30 percent since January 23, 2020. As above, the Veteran's IBS is rated under Diagnostic Code 7319, for IBS. Diagnostic Code 7319 provides ratings for IBS. IBS with mild disturbances of bowel function with occasional episodes of abdominal distress, is rated as noncompensable. IBS with moderate frequent episodes of bowel disturbance and abdominal distress, is rated as 10 percent disabling. IBS with severe diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress, is rated as 30 percent disabling. 38 C.F.R. § 4.114. Additionally, the Veteran's condition may be rated by analogy under DC 7346, for hiatal hernia, which permits a maximum 60 percent evaluation for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. Id. Disabilities of the digestive system are rated in accordance with 38 C.F.R. § 4.114, Diagnostic Codes 7200-7348. Section 4.114 provides that ratings under codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348, inclusive, will not be combined with each other. A single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. Id. VA examination in April 2015 notes the Veteran's report of altered bowel habits for 10 years, to include alternating diarrhea with constipation, and urgency with cramps and abdominal pain after eating a meal. Examination revealed ongoing alternating diarrhea and constipation; three days of diarrhea followed by two to three days of constipation. There was no evidence of weight loss, malnutrition, tumors or neoplasms, or scars. Diagnostic testing (CBC) revealed hemoglobin of 15.7. The examiner diagnosed IBS. Private colonoscopy in February 2017 indicates a normal ileum, diverticulitis in the sigmoid colon, and internal hemorrhoids. VA examination in January 2020 notes the Veteran's report of diarrhea with constipation and a daily feeling of burning in the throat with regurgitation of hot, sour, and acidic tasting fluid from the back of his throat. Examination revealed alternating diarrhea and constipation, nausea three times a day. Vomiting once a day. The examiner noted frequent episodes of bowel disturbance with abdominal distress. There was no evidence of weight loss, malnutrition, or serious complications. There was no evidence of neoplasm or metastases. The examiner diagnosed IBS and GERD. The examiner remarked that the examination revealed a worsening of the Veteran's IBS, and a new diagnosis of GERD. The Board finds that prior to January 23, 2020, the Veteran's disability picture more closely resembles 30 percent disabling as the evidence demonstrates severe disturbances of bowel function as described above, to include alternating diarrhea and constipation with constant abdominal distress manifested by cramping. However, the Veteran's disability picture for the period since January 23, 2020, does not more closely resemble the next higher 60 percent rating pursuant to Diagnostic Code 7346, as there is no evidence of material weight loss, hematemesis, melena with moderate anemia, serious complications or other general health effects attributable to the Veteran's service-connected intestinal disability. Additionally, the Veteran has not identified or described symptoms that could be construed as comparable to the next higher 60 percent rating. For example, the Veteran affirmed that he experienced "pain and cramping" in relation to symptoms of diarrhea, bloating and bowel movements, but did not indicate that he suffered additional symptom combinations productive of severe impairment of health, such as weight loss, blood in her stool, or malnutrition. When there is an approximate balance between positive and negative evidence the benefit of the doubt doctrine must apply in favor of the Veteran. But when the preponderance of the evidence weighs against the claims of the Veteran the claim will be denied on its merits. When the preponderance of the evidence weighs for the claims of the Veteran the claim will be granted on its merits. As indicated in this opinion, the Veteran is receiving only a partial grant of an increased rating based on the preponderance of the evidence weighing in favor of his claim for an increased rating for his IBS, but only from October 2, 2014, to January 23, 2020. from May 6, 2015, to August 29, 2018. The remainder of his claim for an evaluation in excess of 30 percent is denied. The evidence before the Board here indicates that the Veteran's claims must be partially granted and partially denied, and the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for diabetes mellitus, type II, to include as due to exposure to chemical solvents, to include as due to service-connected disabilities. See argument Below at 4 2. Entitlement to service connection for OSA, to include as due to exposure to chemical solvents, to include as due to service-connected disabilities. See argument Below at 4 3. Entitlement to service connection for hypogonadism, to include as due to exposure to chemical solvents, to include as due to service-connected disabilities. See argument Below at 4 4. Entitlement to service connection for hypertension, to include as due to exposure to chemical solvents, to include as due to service-connected disabilities. The Veteran contends that his current diabetes mellitus type II, OSA, hypogonadism, and hypertension disorders are related to his active service, and in the alternative, due to his service-connected disabilities. With respect to diabetes, the Veteran reported that he was exposed to various chemicals as an aircraft crew chief during service. He also reports that was unable to exercise because of his service-connected lumbar spine disability that resulted in difficulty maintaining his weight. Concerning OSA, the Veteran reported that he had difficulty sleeping since service. His spouse asserts that the Veteran began to snore and gasp during service. Regarding hypergonadism, the Veteran reports that it is the result of ongoing pain due to his service-connected spine disability and his OSA. With respect to his current hypertension, the Veteran reports that he had high blood pressure during service. Service treatment records demonstrate the Veteran sought treatment for back pain multiple times in 2000. Records also demonstrate that the Veteran received counseling for his weight in 1998 and 1999. In February 2019 and September 2021, the Veteran's representative submitted additional evidence and argued that there were multiple possible etiologies for the claimed disorders. She noted that the Veteran's doctor told him that his hypertension and diabetes were due in part to his inability to maintain a healthy weight. In addition, chemical exposures related to his military duties as an aircraft crew chief may have also played a role. She further noted that concerning sleep apnea, this is a condition associated with being overweight. Regarding hypogonadism, the Veteran's representative asserted that patients with chronic pain often have low serum testosterone levels. Further, she observed that research concludes that fragmented sleep along with sleep apnea is associated with reduced testosterone. Additionally, the presence of hypogonadism was found to be higher in those with diabetes. In support of these contentions, the attorney submitted numerous articles suggesting a possible relationship between the claimed disorders and obesity, chemical exposures, and chronic pain and sleep disturbances. Pursuant to VAOPGCPREC 1-2017 (Jan. 6, 2017), obesity per se is not a disability subject to service connection. Obesity, however, may be an "intermediate step" between a service-connected disability and a current disability that may be service connected on a secondary basis under 38 C.F.R. § 3.310 (a) (2020). In order for the Veteran's obesity to be considered as an intermediate step between a service-connected disability and the claimed disorders, the examiner must address the following: (1) whether the service-connected disability caused the Veteran to become obese; (2) if so, whether the obesity as a result of the service-connected disability was a substantial factor in causing the claimed disorder; and (3) whether the disorders would not have occurred but for obesity caused by the service-connected disability. The Veteran underwent VA examination in May 2021 with respect to his current diabetes mellitus type II, OSA, hypogonadism, and hypertension disorders. Upon examination, the examiner found that the Veteran's current diabetes mellitus type II, OSA, hypogonadism, and hypertension disorders, were not due to active service or his service-connected lumbar spine disability. In providing the opinions, the examiner found that the disorders were the result of the Veteran's weight gain and obesity. The examiner indicated that the Veteran's service-connected spine disability did not cause the Veteran's obesity because the Veteran remained physically active by maintaining his ranch. The examiner concluded that many people become obese without back problems simply due to poor diet. The Board finds the May 2021 VA examiner's opinions inadequate to adjudicate the claim, as the examiner failed to address the Veteran's service treatment records dated in 2000 that demonstrate complaints of, and treatment for, back pain. Further, the examiner failed to address the records that show the Veteran received counseling for his weight in 1998 and 1999, during service. In addition, the examiner did not consider the Veteran's statements indicating that he experienced ongoing symptoms of chronic back pain that prevented him from meaningful exercise, no change in diet since active service, difficulty sleeping since service, low testosterone levels due to chronic pain as a result of his back disability and difficulty sleeping, high blood pressure, since active service. Further, the examiner did not review the evidence of record indicating a link between TCE exposure and the development of diabetes mellitus type II, and OSA. Finally, the examiner did not address whether the claimed OSA and hypertension disorders are secondary to the service-connected acquired psychiatric disability. Accordingly, additional medical opinions are necessary to make a determination in this case. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As this claim is being remanded, updated VA outpatient treatment records should also be obtained. 38 C.F.R. § 3.159. The matters are REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim, to include VA outpatient treatment records dated from September 2021, to the present, and any addition records identified by the Veteran. If any requested records are unavailable, or the search for such records otherwise yields negative results, that fact should clearly be documented in the record and the Veteran so notified in accordance with 38 C.F.R. § 3.159(e). All steps taken to attempt to obtain the above records should clearly be documented in the record. 2. All pertinent evidence of record must be made available to and reviewed by an appropriate VA physician who has not provided a prior opinion in this case. The Veteran need not appear for an examination unless deemed necessary by the physician assigned to offer an opinion. Following the review of the record, the physician should provide a medical opinion with respect to the diabetes mellitus type II disorder, present during the period of the claim, as to whether it is at least as likely as not (i.e., at least 50 percent probable) that the diabetes mellitus type II disorder, manifested during, or as a result of, active military service, to include chemical exposure to trichloroethylene (TCE), methyl ethyl ketone (MEK), and jet fuels (JP-8), due to the Veteran's position as an aircraft chief. If not, the physician should state a medical opinion with respect to diabetes mellitus type II disorder present during the period of the claim, as to whether it is at least as likely as not (i.e., at least 50 percent probable) that the current diabetes mellitus type II disorder was caused or permanently worsened by the service-connected lumbar spine disability. If the physician believes that diabetes mellitus type II disorder was permanently worsened by a service-connected disorder(s), the physician should attempt to identify the baseline level of disability that existed prior to the onset of aggravation and the extent of disability that is attributable to aggravation. In providing his/her opinion, the examiner must address (a) whether it is at least as likely as not the Veteran's obesity was caused by his service-connected lumbar spine disorder; (b) if so, was the obesity a substantial factor in causing diabetes mellitus type II. In making these determinations discuss all potential risk factors for the claimed disorder; and if the answer to (b) is in the affirmative, address whether it as least as likely as not that the Veteran's diabetes mellitus type II would not have occurred but for the obesity? In providing the opinion, the examiner must discuss the service treatment records dated in 2000, that demonstrate the Veteran sought treatment for back pain, as well as records dated in 1998 and 1999, that show the Veteran received counseling for his weight. The examiner must also consider the Veteran's statements indicating that he experienced ongoing symptoms of chronic back pain that prevented him from meaningful exercise, and no change in diet, since active service. For purposes of the opinion, the examiner should assume that the Veteran is a credible historian to report on in-service and post-service symptomology he experienced. If the examiner is unable to provide any required opinion, the examiner should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. All pertinent evidence of record must be made available to and reviewed by an appropriate VA physician who has not provided a prior opinion in this case. The Veteran need not appear for an examination unless deemed necessary by the physician assigned to offer an opinion. Following the review of the record, the physician should provide a medical opinion with respect to the OSA disorder, present during the period of the claim, as to whether it is at least as likely as not (i.e., at least 50 percent probable) that the OSA disorder, manifested during, or as a result of, active military service, to include chemical exposure to trichloroethylene (TCE), methyl ethyl ketone (MEK), and jet fuels (JP-8), due to the Veteran's position as an aircraft chief. If not, the physician should state a medical opinion with respect to OSA disorder present during the period of the claim, as to whether it is at least as likely as not (i.e., at least 50 percent probable) that the current OSA disorder was caused or permanently worsened by the service-connected lumbar spine disability and/or the service-connected acquired psychiatric disability. If the physician believes that OSA disorder was permanently worsened by a service-connected disorder(s), the physician should attempt to identify the baseline level of disability that existed prior to the onset of aggravation and the extent of disability that is attributable to aggravation. In providing his/her opinion, the examiner must address (a) whether it is at least as likely as not the Veteran's obesity was caused by his service-connected lumbar spine disorder; (b) if so, was the obesity a substantial factor in causing OSA. In making these determinations discuss all potential risk factors for the claimed disorder; and if the answer to (b) is in the affirmative, address whether it as least as likely as not that the Veteran's OSA would not have occurred but for the obesity? In providing the opinion, the examiner must discuss the service treatment records dated in 2000, that demonstrate the Veteran sought treatment for back pain, as well as records dated in 1998 and 1999, that show the Veteran received counseling for his weight. The examiner must also consider the Veteran's statements indicating that he experienced ongoing symptoms of chronic back pain that prevented him from meaningful exercise, and no change in diet, since active service. The examiner must discuss the Veteran's assertions of difficulty sleeping since service, and his spouse's assertion of the Veteran's symptoms of snoring and gasping since service. For purposes of the opinion, the examiner should assume that the Veteran is a credible historian to report on in-service and post-service symptomology he experienced. If the examiner is unable to provide any required opinion, the examiner should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 4. All pertinent evidence of record must be made available to and reviewed by an appropriate VA physician who has not provided a prior opinion in this case. The Veteran need not appear for an examination unless deemed necessary by the physician assigned to offer an opinion. Following the review of the record, the physician should provide a medical opinion with respect to the hypergonadism disorder, present during the period of the claim, as to whether it is at least as likely as not (i.e., at least 50 percent probable) that the hypergonadism disorder, manifested during, or as a result of, active military service, to include chemical exposure to trichloroethylene (TCE), methyl ethyl ketone (MEK), and jet fuels (JP-8), due to the Veteran's position as an aircraft chief. If not, the physician should state a medical opinion with respect to hypergonadism disorder present during the period of the claim, as to whether it is at least as likely as not (i.e., at least 50 percent probable) that the current hypergonadism disorder was caused or permanently worsened by the service-connected lumbar spine disability. If the physician believes that hypergonadism disorder was permanently worsened by a service-connected disorder(s), the physician should attempt to identify the baseline level of disability that existed prior to the onset of aggravation and the extent of disability that is attributable to aggravation. In providing his/her opinion, the examiner must address (a) whether it is at least as likely as not the Veteran's obesity was caused by his service-connected lumbar spine disorder; (b) if so, was the obesity a substantial factor in causing hypergonadism. In making these determinations discuss all potential risk factors for the claimed disorder; and if the answer to (b) is in the affirmative, address whether it as least as likely as not that the Veteran's hypergonadism would not have occurred but for the obesity? In providing the opinion, the examiner must discuss the service treatment records dated in 2000, that demonstrate the Veteran sought treatment for back pain, as well as records dated in 1998 and 1999, that show the Veteran received counseling for his weight. The examiner must also consider the Veteran's statements indicating that he experienced ongoing symptoms of chronic back pain that prevented him from meaningful exercise, and no change in diet, since active service. For purposes of the opinion, the examiner should assume that the Veteran is a credible historian to report on in-service and post-service symptomology he experienced. If the examiner is unable to provide any required opinion, the examiner should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 5. All pertinent evidence of record must be made available to and reviewed by an appropriate VA physician who has not provided a prior opinion in this case. The Veteran need not appear for an examination unless deemed necessary by the physician assigned to offer an opinion. Following the review of the record, the physician should provide a medical opinion with respect to the hypertension disorder, present during the period of the claim, as to whether it is at least as likely as not (i.e., at least 50 percent probable) that the hypertension disorder, manifested during, or as a result of, active military service, to include chemical exposure to trichloroethylene (TCE), methyl ethyl ketone (MEK), and jet fuels (JP-8), due to the Veteran's position as an aircraft chief. If not, the physician should state a medical opinion with respect to hypertension disorder present during the period of the claim, as to whether it is at least as likely as not (i.e., at least 50 percent probable) that the current hypertension disorder was caused or permanently worsened by the service-connected lumbar spine disability and/or the service-connected acquired psychiatric disability. If the physician believes that hypertension disorder was permanently worsened by a service-connected disorder(s), the physician should attempt to identify the baseline level of disability that existed prior to the onset of aggravation and the extent of disability that is attributable to aggravation. In providing his/her opinion, the examiner must address (a) whether it is at least as likely as not the Veteran's obesity was caused by his service-connected lumbar spine disorder; (b) if so, was the obesity a substantial factor in causing hypertension. In making these determinations discuss all potential risk factors for the claimed disorder; and if the answer to (b) is in the affirmative, address whether it as least as likely as not that the Veteran's hypertension would not have occurred but for the obesity? In providing the opinion, the examiner must discuss the service treatment records dated in 2000, that demonstrate the Veteran sought treatment for back pain, as well as records dated in 1998 and 1999, that show the Veteran received counseling for his weight. The examiner must also consider the Veteran's statements indicating that he experienced ongoing symptoms of chronic back pain that prevented him from meaningful exercise, and no change in diet, since active service. The examiner must discuss the Veteran's assertions of high blood pressure since service. For purposes of the opinion, the examiner should assume that the Veteran is a credible historian to report on in-service and post-service symptomology he experienced. If the examiner is unable to provide any required opinion, the examiner should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 6. Then, the AOJ should readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, he and his representative should be provided a supplemental statement of the case and an appropriate period for response before the case is returned to the Board for further appellate action B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sara Schinnerer, 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.