Citation Nr: 21006479 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 19-23 271 DATE: February 4, 2021 ORDER The previously denied claim of entitlement to service connection for a gastrointestinal disorder, adjudicated as stomach pain and regurgitation, is reopened; to this limited extent, the appeal of that issue is granted. REMANDED Entitlement to service connection for a gastrointestinal disorder (claimed as stomach pain and regurgitation), to include as secondary to service-connected bilateral knee patellofemoral syndrome and degenerative joint disease, is remanded. Entitlement to service connection for shin splints, to include as secondary to service-connected bilateral knee patellofemoral syndrome and degenerative joint disease, is remanded. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected bilateral knee patellofemoral syndrome and degenerative joint disease, is remanded. Entitlement to service connection for bilateral pes planus is remanded. Entitlement to service connection for a back disorder, to include as secondary to service-connected bilateral knee patellofemoral syndrome and degenerative joint disease, is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a sleep disorder is remanded. Entitlement to service connection for a bladder disorder is remanded. Entitlement to service connection for a kidney disorder is remanded. Entitlement to service connection for a liver disorder is remanded. Entitlement to service connection for right lower extremity radiculopathy is remanded. Entitlement to an initial rating in excess of 10 percent for left knee patellofemoral syndrome and degenerative joint disease, limitation of flexion, is remanded. Entitlement to an initial compensable rating for right knee patellofemoral syndrome and degenerative joint disease, limitation of flexion, is remanded. FINDINGS OF FACT 1. The Veteran’s claim of entitlement to service connection for stomach pain and regurgitation was initially denied in an unappealed March 1998 rating decision, which became final. 2. Evidence received since the March 1998 rating decision is not cumulative or redundant and raises a reasonable possibility of substantiating the claim for service connection for a gastrointestinal disorder. CONCLUSIONS OF LAW 1. The March 1998 rating decision is final with respect to the denial of service connection for stomach pain and regurgitation. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1103. 2. New and material evidence has been received to reopen the claim for service connection for a gastrointestinal disorder, claimed as stomach problems and regurgitation. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1992 to August 1996. These matters come to the Board of Veterans’ Appeals (Board) on appeal from October 2015 and October 2016 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office. The issues involving the initial ratings for bilateral knee flexion and service-connection for erectile dysfunction, a back disorder, right lower extremity radiculopathy, pes planus, hypertension, a liver disorder, a kidney disorder, a bladder disorder, and a sleep disorder were previously before the Board in November 2018, when they were remanded for additional development. With respect to the previously remanded issue of entitlement to service connection for erectile dysfunction, that issue was certified again to the Board in August 2019, along with new appeals pertaining to, among other things, service connection for shin splints and an application to reopen a previously denied claim for service connection for a gastrointestinal disorder. The Board addressed those issues, and others, in a September 2019 decision and remand. In pertinent part, the Board denied service connection for shin splints, found that new and material evidence had not been received to reopen the claim for service connection for a gastrointestinal disorder, and remanded the issue of entitlement to service connection for erectile dysfunction a second time as inextricably intertwined with issues that were the subject of the November 2018 remand, which remained pending at the agency of original jurisdiction. The Veteran appealed the September 2019 Board decision as to shin splints and a gastrointestinal disorder to the U.S. Court of Appeals for Veterans Claims. In July 2020, the parties agreed to vacate the Board’s denial of these two issues in accordance with the terms of a Joint Motion for Partial Remand (JMPR). The case was then remanded to the Board for action consistent with the JMPR. Recently, in August 2020, the issues addressed in the Board’s November 2018 remand were returned to the Board, albeit prematurely, as will be discussed below, in the remand portion of this decision. Claim to Reopen The previously denied claim of entitlement to service connection for a gastrointestinal disorder is reopened. According to the July 2020 JMPR, vacatur of the Board’s September 2019 decision to deny reopening of the claim for service connection for a gastrointestinal disorder was warranted because the Board provided an inadequate statement of reasons or bases in support of its decision. “Specifically, the Board failed to address Appellant’s argument that his gastrointestinal disability was secondary to medications used to treat his service-connected disabilities.” The RO initially denied service connection for “stomach pain/regurgitation” in a March 1998 rating decision, finding that there was no record of treatment in service for stomach pain/regurgitation nor evidence which demonstrated that the claimed condition was incurred in or aggravated by military service. See March 2998 rating decision. The Veteran did not file a notice a disagreement, nor was new and material evidence submitted within a year of that decision so as to preclude finality under 38 C.F.R. § 3.156(b). In addition, although additional service personnel records were later added to the record, they were not relevant to the issue. Therefore, the rating decision became final. See 38 C.F.R. § 3.156(c). As noted in the JMPR, the Veteran has since raised a new theory of entitlement to service connection by claiming that his gastrointestinal complaints are related to medications he is taking to treat his service-connected disabilities. VA treatment records reflect that he is prescribed famotidine twice a day “for stomach,” and the Veteran’s opiod informed consent forms note that “Possible opioid side effects include . . . [n]ausea and vomiting.” See, e.g., November 2019 VA treatment records. This new evidence, received since the March 1998 rating decision, when considered in conjunction with the rest of the evidence, relates to an unestablished fact necessary to substantiate the claim and triggers VA’s duty to assist in obtaining a VA examination and opinion on the matter. Therefore, the claim is reopened. REASONS FOR REMAND 1. Entitlement to service connection for a gastrointestinal disorder (claimed as stomach pain and regurgitation), to include as secondary to service-connected bilateral knee patellofemoral syndrome and degenerative joint disease, is remanded. As discussed above, VA treatment records reflect that the Veteran is prescribed famotidine twice a day “for stomach,” and his opiod informed consent forms note that “Possible opioid side effects include . . . [n]ausea and vomiting.” See, e.g., November 2019 VA treatment records. Additionally, although the Veteran underwent a general medical examination in January 1998 that diagnosed “[h]istory of regurgitation, cause undetermined,” he has not been provided with a gastrointestinal examination to ascertain whether he has a current disability manifested by stomach pain and/or regurgitation that may be related to service or otherwise caused or aggravated by the medications he takes for his service-connected patellofemoral syndrome and degenerative joint disease of the knees. A remand for additional development is needed in accordance with VA’s duty to assist. Additionally, while on remand, any recent VA treatment records should be associated with the claims file. 2. Entitlement to service connection for shin splints, to include as secondary to service-connected bilateral knee patellofemoral syndrome and degenerative joint disease, is remanded. According to the July 2020 JMPR: The parties also agree that remand of the claim of service connection for shin splints is warranted for the Board to provide Appellant with an addendum to his August 2016 VA Examination.[] In his August 2016 examination report, the VA physician noted that Appellant “report[ed] problems with shin splints, with burning and aching for the past 3 yrs.” [] However, during an earlier January 1998 VA examination, Appellant was diagnosed with “shin splints, bilaterally.” [] Based on the conflicting nature of these reports, an addendum opinion is necessary to clarify the onset of Appellant’s current shin splint disability. By the terms of the JMPR, a remand is needed for a VA addendum opinion that considers the earlier January 1998 diagnosis of shin splints. 3. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected bilateral knee patellofemoral syndrome and degenerative joint disease, is remanded. As mentioned in the Board’s previous September 2019 BVA remand, the Veteran’s claim for service connection for erectile disfunction is intertwined with other service connection claims that were remanded in November 2018. Additionally, the Veteran’s representative has argued that the existing VA opinion is inadequate. Specifically, it was alleged that “the relied-on examiner did not adequately address whether medications taken for service-connected conditions caused erectile dysfunction . . . his doctor told him his [ED] might be due to his medication.” The Veteran takes “cyclobenzaprine and tramadol to treat muscle pain and stiffness for his service-connected knee conditions. Cyclobenzaprine is known to cause erectile dysfunction. The examiner’s failure to address this connection rendered the examination inadequate.” In support for this theory of secondary service connection, the Veteran submitted an article entitled, “Drugs Linked to Erectile Dysfunction.” The VA examiner should address this information in an addendum opinion. 4. Entitlement to service connection for bilateral pes planus is remanded. 5. Entitlement to service connection for a back disorder, to include as secondary to service-connected bilateral knee patellofemoral syndrome and degenerative joint disease, is remanded. 6. Entitlement to service connection for hypertension is remanded. 7. Entitlement to service connection for a sleep disorder is remanded. 8. Entitlement to service connection for a bladder disorder is remanded. 9. Entitlement to service connection for a kidney disorder is remanded. 10. Entitlement to service connection for a liver disorder is remanded. 11. Entitlement to service connection for right lower extremity radiculopathy is remanded. 12. Entitlement to an initial rating in excess of 10 percent for left knee patellofemoral syndrome and degenerative joint disease, limitation of flexion, is remanded. 13. Entitlement to an initial compensable rating for right knee patellofemoral syndrome and degenerative joint disease, limitation of flexion, is remanded. With regard to issues numbered 4 through 13 above, these matters were previously remanded by the Board in November 2018. While the AOJ was undertaking development of those issues, the matters were prematurely returned to the Board, in error, in August 2020. According to a Discussion Thread printout of record, entitled “[U]nadjudicated Remand sent back to BVA,” it was explained that there was a mistake in returning these issues to the Board: Someone at either RO46 or 48 returned the 11-05-18 remand to BVA on 08-18-20, without finishing it. . . . There are no notes or any other indication to explain why someone returned the VACOLS record to BVA on 8-18-20, without issuing an SSOC first. . . . Bottom line, an SSOC has not been issued for the 11-05-18 remand. See December 2020 VA Discussion Thread printout. Indeed, many new VA medical examinations and opinions were added to the electronic claims file in October 2019 in conjunction with the remand, but no supplemental statement of the case (SSOC) or other adjudication has been performed with respect to the rating claims for bilateral knee flexion or the service connection claims pertaining to a back disorder, right lower extremity radiculopathy, pes planus, hypertension, a liver disorder, a kidney disorder, a bladder disorder, or a sleep disorder. As the AOJ has expressly indicated that it has not yet completed action with respect to the November 2018 remand for these issues, a remand is appropriate. See also Stegall v. West, 11 Vet. App. 268 (1998) (holding where the remand orders of the Board are not fully implemented, the Board itself errs in failing to ensure compliance). These matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from March 2020 to the present. 2. Arrange to have the Veteran scheduled for a VA gastrointestinal examination regarding his complaints of stomach pain and regurgitation. The examiner should review the record. All indicated tests should be conducted and the results reported. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner should offer an opinion as to (1) whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran has a current gastrointestinal disorder that had its onset in, or is otherwise related to, service, and (2) whether it is at least as likely as not that the Veteran has a current gastrointestinal disorder that is either caused OR aggravated (i.e., worsened beyond natural progression) by the medications he uses to treat his service-connected knee disabilities. A complete medical rationale for all opinions expressed must be provided. 3. Obtain an addendum medical opinion with respect to the nature and onset of the Veteran’s shin splints. Specifically, the examiner should review the record and offer opinions as to: (a) whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran’s shin splints had their onset in, or are otherwise related to, service, and (2) whether it is at least as likely as not that the shin splints are either caused OR aggravated (i.e., worsened beyond natural progression) by his service-connected knee disabilities. In doing so, the examiner is asked to discuss the January 1998 VA general medical examination that diagnosed “[t]endonitis knees, bilaterally, mild, with shin splints, bilaterally.” 4. Obtain an addendum medical opinion with respect to the etiology of the Veteran’s erectile dysfunction. Specifically, the examiner should review the record and offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the erectile dysfunction is either caused OR aggravated (i.e., worsened beyond natural progression) by the medication he is taking to treat his service-connected knee disabilities. In doing so, the examiner must discuss the statements of record indicating that the Veteran takes cyclobenzaprine and tramadol to treat muscle pain and stiffness for his service-connected knees. 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran’s claims for service connection for shin splints, a gastrointestinal disorder, and erectile dysfunction should be readjudicated based on the entirety of the evidence. The issues involving initial ratings for bilateral knee flexion and service connection for a back disorder, right lower extremity radiculopathy, pes planus, hypertension, a liver disorder, a kidney disorder, a bladder disorder, and a sleep disorder that were remanded in November 2018 and erroneously returned to the Board in August 2020 should also be readjudicated pending completion of any remaining development. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Gielow 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.