Citation Nr: 21030202 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 10-34 180 DATE: May 18, 2021 ORDER Entitlement to service connection for a chronic gastrointestinal disorder, to include small intestinal bacterial overgrowth (SIBO), irritable bowel syndrome (IBS), and gastroesophageal reflux disease (GERD), claimed as a chronic gastrointestinal disorder manifested by blood in the stool other than a post-operative lower abdomen scar, is granted. REMANDED Entitlement to service connection for Reiter's syndrome is remanded. Entitlement to a total rating based on individual unemployability (TDIU) is remanded. REFERRED The issues of whether new and relevant evidence has been received to reconsider claims for service connection for bilateral hip, bilateral knee, and respiratory disorders were raised during the November 2020 hearing before the Board of Veterans' Appeals (Board) and are referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. FINDING OF FACT The Veteran's gastrointestinal disability manifested during and has continued since service. CONCLUSION OF LAW The criteria for service connection for a gastrointestinal disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Cost Guard from August 1974 to April 1978. These matters come before the Board on appeal from December 2008 and March 2015 rating decisions rendered by Department of Veterans Affairs (VA) Regional Offices (RO). Jurisdiction over the appeal was thereafter transferred to the RO in St. Louis, Missouri. In November 2012, the Veteran testified at a video hearing before Veterans Law Judge (VLJ) Reiss. A transcript of that hearing has been associated with the claims file. In February 2014 and December 2017, the Board remanded these matters for additional development. In November 2020, the Veteran testified at a virtual hearing before VLJ Chu. A transcript of that hearing has been associated with the claims file. As there have been two hearings by two separate VLJs on the issues on appeal, a panel decision is necessary for final adjudication of the claim. See Arneson v. Shinseki, 24 Vet. App. 379 (2011). In Arneson, the United States Court of Appeals for Veterans Claims (Court) interpreted 38 C.F.R. § 20.707 as requiring that an appellant must be provided the opportunity for a hearing before all three Veterans Law Judges involved in a panel decision. Id. By law, an appeal can be assigned only to an individual VLJ or to a panel of not less than three members. See 38 U.S.C. § 7102. Thus, when an appellant has had a personal hearing before two separate VLJs during the appeal and these hearings covered one or more common issues, a third VLJ is assigned to the panel after the second Board hearing has been held and the appeal is then ready for appellate review. Under these circumstances where a "claimant's appeal is assigned to a Board panel in a piecemeal fashion," the Court held in Arneson that the "claimant must still be afforded the opportunity for a hearing before every member of the panel that will ultimately decide his case." Arneson, 24 Vet. App. at 386. This does not mean that the hearing must be held before every member of the panel at the same time, but rather "only that [the appellant] be afforded the opportunity to be heard...by every panel member who will decide his case." Id. During the November 2020 hearing before VLJ Chu, VLJ Chu notified the Veteran of the Arneson criteria and asked him if he would like to appear for a third hearing before the final panel member. On the record and documented in the hearing transcript, the Veteran declined to attend a hearing before a third VLJ. Thus, the Board has complied with the requirements set forth in Arneson. Service Connection 1. Entitlement to service connection for a chronic gastrointestinal disorder, to include SIBO, IBS, and GERD, claimed as a chronic gastrointestinal disorder manifested by blood in the stool other than a post-operative lower abdomen scar, is granted. The Veteran contends that he had gastrointestinal symptoms manifesting as blood in the stool which began during and continued after service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (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 Veteran has current diagnoses of SIBO or IBS, and GERD. See VA treatment records dated July 25, 2019 and November 9, 2019. His symptoms have included bloating, bloody stool, heartburn, diarrhea, and abdominal pain that cause functional impairment and first manifested during service. Specifically, service treatment records show that in April 1975, the Veteran was treated for gastroenteritis. In April 1976, he reported having stomachache when eating spicey foods. During his November 2020 hearing before the Board, the Veteran testified that he first started having gastrointestinal symptoms during service after he was hit by a vehicle. His bowel flare-ups were short-lived but his digestive system problems persisted. He stated that his stomach was injured in the motor vehicle accident (MVA) and required lower abdominal surgery. He was not told exactly what had been repaired. He believed his food choice could aggravate his digestive system, so he was careful with food selections. He noted that he has also taken several medications over the years and he has never been clear on the cause of his symptoms, whether they are medication induced or from the bowel syndrome. The Veteran is competent to report that he experienced symptoms of abdominal pain, heartburn or indigestion, change in bowel habits, loose and watery bowel movements, and bloody stool during and since service. His statements are credible and entitled to probative weight, as they are internally consistent and consistent with other evidence of record, which shows consistent complaints of symptoms. For example, service treatment records show the onset of symptoms during service. His wife reported that she had observed the Veteran's gastrointestinal symptoms since 1986. Private treatment records dated in 1994 show complaints of digestive problems, such as abdominal pain, heartburn or indigestion, change in bowel habits, loose and watery bowel movements, and bloody stool. The assessment was GERD. Private treatment record dated in September 2003 show the Veteran had badly healed abdominal scar tissue from the in-service MVA. He reported left upper stomach pain, vomiting, and thin bowel movement with darker blood. On examination, he had abnormal bowel sounds and pain with pressure in the lower stomach region. Most recently, VA treatment records show continued complaints of symptoms and diagnoses of SIBO or IBS, and GERD. Based on the available medical evidence showing the onset of gastrointestinal symptoms during service and lay evidence, including the Veteran's competent and credible statements showing continuity of symptoms since service, the Board finds that service connection for a chronic gastrointestinal disorder, to include SIBO, IBS, and GERD, claimed as a chronic gastrointestinal disorder manifested by blood in the stool other than a post-operative lower abdomen scar, is warranted. The appeal is granted. REASONS FOR REMAND 1. Entitlement to service connection for Reiter's syndrome is remanded. The Veteran seeks service connection for Reiter's syndrome. The Board remanded this matter in December 2017 to obtain an opinion addressing whether the Veteran has had a credible diagnosis of Reiter's syndrome at any time since 2007, and if so, whether the diagnosis, even if resolved, is related to service. A VA opinion was obtained in February 2020; however, the opinion is inadequate for rating purposes. First, the examiner stated that the medical records for the last 10 years did not support the finding of an acute or chronic disabling Reactive Arthritis or "Reiter's Syndrome" condition. The examiner did not address whether the Veteran had a credible diagnosis from 2007 to 2009. Notably, private treatment records translated from German to English document current Reiter's syndrome in January and July 2008. Second, the examiner focused on whether the Veteran had symptoms of Reiter's syndrome during service. The examiner did not address whether any subsequent manifestation of Reiter's syndrome was related to the trauma the Veteran sustained during the in-service motor vehicle accident (MVA). Finally, in providing the opinion, the examiner did not address the Veteran's written lay statements or testimony before the Board. On remand, an addendum opinion must be obtained that addresses these deficiencies. 2. Entitlement to a TDIU is remanded. Finally, because a decision on the above remanded issue could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. A remand of the claim for entitlement to a TDIU is required. The matters are REMANDED for the following actions: 1. Associate with the claims file updated VA treatment records, if any. 2. Obtain an addendum opinion from the February 2020 examiner, or another qualified clinician, addressing the etiology of the Veteran's Reiter's syndrome. The electronic claims file must be made available to the examiner and the examiner must indicate review of the claims file in the opinion report. After reviewing the evidence, the examiner should address the following: Did the Veteran have a diagnosis of Reiter's syndrome at any time since 2007, even if it has since resolved? If the Veteran has had a diagnosis of Reiter's syndrome at any time since 2007, even if it has resolved, is it at least as likely as not that the disorder is related to service, to include as a residual of the in-service MVA, or had its onset in service and/or has continued since that time? In providing the requested opinions, the examiner should comment on the diagnosis of Reiter's syndrome seen in the post-2007 record, to include the private treatment records showing an active diagnosis in January and July 2008, and comment on the opinions by the May 2014 and January 2016 VA examiners that the Veteran did not meet the criteria for a diagnosis of Reiter's syndrome. In providing the requested opinions, the examiner must address the Veteran's written lay statements as well as the testimony from his two Board hearings regarding observable symptoms of Reiter's syndrome. The examiner should specifically address whether the disorder is related to the in-service MVA. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that any of the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. Then readjudicate the appeal. As to the TDIU claim, this adjudication should consider all residual psychiatric (including any psychosomatic and/or gastrointestinal problems), neurological, and TBI impairment caused by all of the Veteran's service-connected disabilities and their impact on employability. If any benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case (SSOC). The Veteran should be given an appropriate opportunity for response before returning the appeal to the Board. L. CHU Veterans Law Judge Board of Veterans' Appeals STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals K. CONNER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. G. Alderman, 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.