Citation Nr: 21072214 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 17-50 904 DATE: December 2, 2021 REMANDED Entitlement to a disability rating in excess of 30 percent for service-connected Crohn's disease is remanded. Entitlement to service connection for sleep apnea as secondary to service-connected Crohn's disease is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. INTRODUCTION The Veteran served honorably on active duty in the United States Navy during the Gulf War Era, from December 2004 to April 2012. These matters come before the Board of Veterans' Appeals (Board) on appeal from April 2017 and May 2017 Rating Decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). When the Veteran's claims for an increased rating for Crohn's disease and service connection for sleep apnea came before the Board most recently in November 2019, they were denied. Upon appealing to the United States Court of Appeals for Veterans Claims (Court), the Court issued an April 2021 Memorandum Decision remanding the matters for further proceedings consistent with the terms therein. The claim for an increased rating for service-connected rhomboid muscle sacroiliitis was deemed abandoned by the Court. When the issue of entitlement to a TDIU came before the Board most recently in June 2021, it was remanded for additional development which has since been completed. These claims now return to the Board for further appellate review and have been merged for purposes of judicial economy and efficiency. Finally, the Veteran's claims for service connection for lumbar spine and left hip disorders were also remanded in the Board's June 2021 decision and, thereafter, a September 2021 Rating Decision granted these claims. As this represents a full grant of the benefits sought, these issues are no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). REASONS FOR REMAND Entitlement to a disability rating in excess of 30 percent for service-connected Crohn's disease is remanded. According to the Court's April 2021 Memorandum Decision, "the Board failed to discuss inconsistencies within the 2016 and 2019 VA examinations" and "ignored certain potentially favorable evidence material to [the Veteran's] claim." For the reasons set forth below, the Board finds remand is required to obtain a medical opinion adequate for adjudication purposes before a fully informed decision can be rendered in this matter. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). First, the Court's decision took issue with both the December 2016 and June 2019 VA examination reports. According to the Court, the December 2016 VA examiner "essentially only summarized the majority of [the Veteran's] symptoms and the severity of those symptoms." Further, according to the Court, although the June 2019 VA examiner found no malnutrition on examination, "other evidence indicates that [the Veteran] was experiencing a vitamin and nutrient deficiency at the time." Because malnutrition or "marked" malnutrition are among the schedular rating criteria warranting 60 percent or 100 percent ratings respectively for Crohn's disease, a VA medical opinion is required to address the presence and severity of any malnutrition or other manifestations under the applicable rating criteria for the entire period on appeal. See 38 C.F.R. § 4.114, Diagnostic Code (DC) 7323. Next, according to the Court's decision, "[t]he Board failed to mention [the Veteran's] September 2018 medical notes in which [he] visited the emergency room and was consequently admitted to the hospital for a Crohn's flare-up." Similarly, the June 2019 VA examination report fails to address these treatment records. As a result, on remand, the VA examiner must specifically discuss these and any other pertinent treatment records for the entire period on appeal. Entitlement to service connection for sleep apnea as secondary to service-connected Crohn's disease is remanded. The Veteran contends his sleep apnea is secondary to service-connected Crohn's disease. In a November 2019 Brief, his attorney argues that Crohn's disease can cause obesity which, in turn, can cause sleep apnea, and cites a clinical study article in support. According to the Court's decision, the Board failed to address this potentially favorable evidence. Moreover, the Board finds the Veteran's claim for service connection for sleep apnea as secondary to Crohn's disease is inextricably intertwined with the increased rating claim for Crohn's disease being remanded herein. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (providing that two or more issues are inextricably intertwined if one claim could have significant impact on the other). Accordingly, adjudication of this claim will be deferred until further development of the inextricably intertwined issue is completed. Id. Entitlement to a TDIU is remanded. Likewise, the Board finds the Veteran's claim for a TDIU is inextricably intertwined with the increased rating and service connection claims being remanded herein. See Harris, 1 Vet. App. at 183. Accordingly, adjudication of this claim will be deferred until further development of the inextricably intertwined issues is completed. Id. The Veteran submitted a Veteran's Application for Increased Compensation Based on Unemployability (VA Form 21-8940) in December 2016. However, the Board observes evidence of record indicating the Veteran has worked during the period on appeal. As such, he should be provided with VA Form 21-8940 to complete and return. Accordingly, these matters are REMANDED for the following action: 1. Provide the Veteran (with a copy to his representative) another VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, and seek completed VA Form(s) 21-4192, Request for Employment Information in Connection with Claim for Benefits, from all identified employers for the entire period on appeal. 2. Thereafter, schedule the Veteran for an in-person VA examination with a physician who has not previously offered an opinion in this matter and possessing the necessary expertise to fully assess and provide an opinion regarding the nature and severity of the Veteran's service-connected Crohn's disease for the entire period on appeal, as well as the nature, severity, and likely etiology of his sleep apnea. The examiner must obtain a full history from the Veteran. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, such as observable symptomology and functional limitations. All pertinent symptomology and manifestations, including when initially manifested and any progression, must be elicited from the Veteran and reported in detail. Any indicated studies must be performed. Based upon a review of all pertinent evidence in the Veteran's claims file including medical treatment and prior examination records, lay statements, and the examination results, the examiner must offer an opinion based upon an accurate medical history with clear conclusions and supporting data as to: (a.) The full description of the Veteran's service-connected Crohn's disease and all signs and symptoms necessary for evaluating his disability under the rating criteria for the entire period on appeal. (b.) Whether it is at least as likely as not (i.e., 50 percent probability or greater) the Veteran's sleep apnea is proximately due to, related to, or otherwise etiologically associated with his service-connected disabilities including, but not limited to, Crohn's disease and any resulting obesity? (c.) Whether it is at least as likely as not (i.e., 50 percent probability or greater) the Veteran's sleep apnea has been aggravated by his service-connected disabilities including, but not limited to, Crohn's disease and any resulting obesity? The examiner is advised that aggravation does not require a permanent worsening of the condition, but rather, any incremental increase in disability attributable to the service-connected disability, i.e., any additional impairment of earning capacity that is above the degree of disability existing before the increase. See Ward v. Wilkie, 31 Vet. App. 233 (2019). In offering the above opinions, the examiner must consider, discuss, and reconcile as necessary all pertinent lay and medical treatment and examination evidence of record including, but not limited to: (a.) August 2015 VA treatment records noting weight loss; (b.) December 2016 VA examination report noting "[m]more or less constant" episodes, attacks, and exacerbations of Crohn's disease, and "malnutrition, serious complications or other general health effects attributable to the intestinal condition"; (c.) September 2018 VA treatment records regarding hospital admission due to a Crohn's flare; (d.) June 2019 VA examination report noting the Veteran "[h]as been intentionally putting on weight," "[w]ould lose 20 pounds a month," and was taking folic acid and B12; and (e.) clinical study article Crohn's Disease, Obesity and Disease Severity, U.S. National Library of Medicine, https://www.clinicaltrials.gov/ct2/show/NCT00488085 cited in the representative's November 2019 Brief regarding obesity and Crohn's disease. The examiner is advised that the mere absence of evidence does not equate to unfavorable evidence. The Veteran's lay statements and reports of onset and symptomology must be considered and discussed. A complete and thorough rationale for all opinions expressed, with references to pertinent evidence of record and, as warranted, relevant medical literature must be provided. (Continued on next page) T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Worsham, Attorney Advisor 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.