Citation Nr: 21068748 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 17-04 073 DATE: November 12, 2021 ORDER Entitlement to service connection for a disability of the digestive system, to include the intestines, stomach, and esophagus, is denied. REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The preponderance of the evidence of record is against a finding that the Veteran has experienced a disability of the digestive system at any time during or proximate to the pendency of the claim. CONCLUSION OF LAW The criteria for entitlement to service connection for a digestive disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the U.S. Army from February 2002 to October 2008. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision issued by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). This matter was previously before the Board in August 2019 and July 2021, at which point it was remanded for development. A VA examination was performed in August 2021. The Board finds that this VA examination substantially complied, to the extent possible, with prior remand directives concerning the Veteran's service connection claim for disability of the digestive system. Accordingly, no further action is warranted. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (concluding that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where there was substantial compliance with the Board's remand instructions). However, the VA examiner opinion pertaining to the Veteran's service connection claim for a right knee disability is inadequate. Accordingly, while the Board regrets additional delay, remand of the Veteran's service connection claim for a right knee disability is necessary. Stegall, 11 Vet. App. at 268. Additionally, the Board notes that there were additional issues on appeal. In an August 2019 decision, the Board granted the Veteran's service connection claim for PTSD. As this represents a full grant of the benefits sought, this claim is no longer on appeal. See Grantham v. Brown, 114 F.3d. 1156 (Fed. Cir. 1997). In the same decision, the Board denied the Veteran's service connection claims for fibromyalgia, chronic fatigue syndrome, and disabilities of the back, left knee, left ankle, left foot, and skin. As the Veteran has not appealed these claims, they are no longer before the Board. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Service connection may also be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 1. Entitlement to service connection for a disability of the digestive system, to include the intestines, stomach, and esophagus. The Veteran filed a service connection claim for disability of the digestive system and reported in December 2016 that he had worsening IBS. However, the preponderance of the evidence is against the Veteran's claim. Notably, there is no objective evidence on record that the Veteran has a current disability of the digestive system. VA treatment records reveal that the Veteran sought care for diarrhea in November 2014. At this time, the Veteran reported that he had been having diarrhea and lack of energy for several days. He denied any nausea or vomiting. He was advised to follow a diet of bananas, rice, applesauce, and toast (BRAT) but no diagnosis was offered. With the exception of this one visit, the Veteran denied having diarrhea, nausea, vomiting, abdominal pain, or reflux in his other treating visits. Additionally, numerous VA examiners have concluded that the Veteran does not have a gastrointestinal condition. In November 2015, the Veteran reported having bouts of loose stools during a Gulf War general medical examination. He also reported gaseousness and mild mid abdominal pains associated with the loose stools. Otherwise, the Veteran indicated that he had formed stools and he did not complain of constipation. The examiner noted that the Veteran had no systemic complaints of fever, weight loss, nausea, or vomiting. From this examination, the examiner concluded that the Veteran's current symptoms may fulfill the criteria for IBS. However, the examiner also concluded that the Veteran does not now, nor has he ever been diagnosed with an intestinal condition. Because these conclusions were inconsistent with each other, the Board concluded that this examination was inadequate remanded the Veteran's claim in August 2019 for a new VA examination. Another VA examination was performed in January 2021. At this time, the Veteran reported having chronic upset stomach with loose stools at times and cramping that developed within the past year. Despite the Veteran's reports, this examiner also concluded that the Veteran does not now, nor has he ever been diagnosed with an intestinal condition. In support of this conclusion, the examiner noted that there is no objective evidence to support a diagnosis for the claim of IBS or any intestinal condition at this time. The examiner elaborated that the Veteran has never had a workup of his reported symptoms and was not seen in the military for any gastrointestinal symptoms. Additionally, the examiner concluded that that the Veteran's description of complaints is not abnormal for the population in general. However, the examiner indicated that medication use (antacids in particular) is indicative of a stomach or esophageal condition outside the scope of the current examination. Because this examiner did not evaluate all of the Veteran's symptoms, the Board concluded that the examination was inadequate and remanded the claim in July 2021. A final VA examination was performed in August 2021. Consistent with the prior opinions, this examiner also concluded that the Veteran does not now, nor has he ever been diagnosed with an intestinal condition. In support of this conclusion, the examiner indicated that the Veteran reported that his past history of upset stomach has been resolved. The examiner elaborated that the Veteran thought he was attending a mental health examination and indicated that he does not wish to claim any gastrointestinal conditions at this time. All of the VA opinions have some probative value. Consistent with these opinions, treating records do not include symptoms, complaints, or diagnosis of a current digestive disability. Although the Veteran complained of diarrhea in November 2014, he did not seek additional care for this symptom. Furthermore, the Veteran reported that his past history of stomach upset has resolved during his August 2021 VA examination and he indicated that he did not wish to claim any gastrointestinal conditions. These reports are consistent with the rationale provided by the January 2021 VA examiner that the Veteran's description of complaints was not abnormal for the population in general. Accordingly, the Board affords the VA opinions probative weight. In light of the most probative evidence, the VA opinions and treating records, the Board finds that entitlement to service connection for a disability of the digestive system cannot be established and the Veteran's claim is denied. REASONS FOR REMAND 1. Entitlement to service connection for a right knee disability is remanded. In November 2015, the Veteran reported bilateral knee pain that was worse on the right during a Gulf War general medical examination. At this time, the Veteran reported that he cannot sit or walk for prolonged periods and he occasionally uses a cane to walk. On examination, the Veteran exhibited objective evidence of modest inferior patella pain with lateral and medial rotation and swelling of the right knee. The Veteran also exhibited pain with weightbearing. The examiner noted that chronic right knee swelling may be a sign of internal derangement and urged the veteran to have follow up with his primary care. However, the examiner concluded that the Veteran does not have functional impairment, or a diagnosis related to his complaints of knee pain. Because the examiner noted that the Veteran might have internal derangement of the knee without diagnosing the condition, the Board concluded that the opinion was inadequate. A new VA examination was performed in January 2021. At this time, the VA examiner provided a negative nexus opinion. In support of her opinion, the examiner noted that the Veteran did not complain of knee pain until his VA examination in November 2015, which was seven years after his separation from the military. The examiner elaborated that x-rays performed at this time were normal. Additionally, the examiner concluded that the Veteran's current complaints of right knee pain could be attributed to an ACL tear and repair surgery that occurred in 2018. The Board concluded that this opinion was inadequate because the examiner failed to address treating records that documented arthritis of the right knee. Accordingly, the Board remanded the claim in July 2021 for an addendum opinion. In August 2021, a VA examiner rendered a negative nexus opinion. In support of this opinion, the examiner concluded that there is no objective evidence of arthritis on record. The examiner elaborated that VA notes indicate that the Veteran is on meloxicam for arthritic pain, but there are no radiological examinations to support his claim. The examiner further noted that x-rays performed in 2015 were unremarkable. However, this opinion did not address whether the Veteran has any other disability of the right knee. Additionally, the examiner did not address the positive clinical findings from the November 2015 examination, the Veteran's reports of functional limitation, or the examiner's notation that the Veteran might have had internal derangement of the knee. The examiner also failed to address the Veteran's reports that he participated in airborne status with over 60 jumps from a transport plane during his service and that he has had continuous knee pain since service. Accordingly, remand is necessary to obtain an addendum opinion. Upon remand, the Board notes pain alone without an accompanying diagnosis of present disease can qualify as a disability for VA purposes where there is functional impairment. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Entitlement to a total disability rating based on individual unemployability (TDIU) The Board finds that any decision with respect to the Veteran's service connection claim for a right knee disability may affect his claim for a TDIU. Thus, the claims are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The record also shows that the Veteran has not yet completed a formal TDIU application form, VA Form 21-8940. The Veteran should be provided with the opportunity to complete this form upon remand. The matters are REMANDED for the following action: 1. Obtain and associate with the Veteran's claims file any outstanding VA treatment records. Also, provide the Veteran with a VA Form 21-8940 and request that he complete this form and return it. 2. Obtain an addendum opinion from an appropriate clinician concerning the nature and etiology of the Veteran's claimed right knee disability. The claims file and a copy of this remand must be made available to the reviewing examiner, and the examiner should indicate in the report that the claims file was reviewed. (a) The examiner must first indicate if the Veteran has a disability of the right knee or functional loss attributed to pain in the right knee. * The examiner should address the positive clinical findings from the November 2015 VA examination and the VA examiner's notation that these findings might be indicative of an internal derangement of the knee. The examiner should also address the Veteran's reports in November 2015 of difficulty with prolonged standing and walking, and the need to use a cane to ambulate on occasion due to knee pain. (b) The examiner is then asked to provide an opinion on the following: Whether it is at least as likely as not (50 percent or greater probability) that any diagnosed right knee condition or functional impairment due to pain manifested in service, within one year of separation from service, or is otherwise related to service. * The examiner should address the Veteran's reports that he participated in airborne status with over 60 jumps from a transport plane during his service and that he has had continuous knee pain since service. 2. Then, re-adjudicate the claims, including TDIU. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Beech, Associate 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.