Citation Nr: 21041560 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 16-14 007 DATE: July 9, 2021 ORDER Entitlement to service connection claim for irritable bowel syndrome (IBS) is denied. REMANDED 1. Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for a right hip disability, secondary to a service-connected disability, is remanded. 2. Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for a left shoulder disability is remanded. 3. Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for Arnold-Chiari malformation with syringomyelia is remanded. 4. Entitlement to service connection for a left arm disability is remanded. FINDING OF FACT The Veteran does not have a current disability of irritable bowel syndrome. CONCLUSION OF LAW The criteria for service connection of irritable bowel syndrome have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from March 1980 to June 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 and September 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Board denied a rating in excess of 20 percent for lumbosacral strain, and this issue is no longer on appeal. In October 2018 the Board issued a remand order. The Board finds that there has been substantial compliance with the remand directives only concerning the Veteran's claim of service connection for IBS. Stegall v. West, 11 Vet. App. 268, 271 (1998). In April 2020, the RO granted service connection for unspecified depressive disorder. Therefore, the issue of service connection for an acquired psychiatric disorder is no longer on appeal. Service Connection Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. See Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weight its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995). The Veteran is competent to provide testimony concerning factual matters of which he has firsthand knowledge, such as experiencing a physical symptom such as pain. Barr v. Nicholson, 21 Vet. App. 303 (2007). Further, under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau, 492 F.3d 1372 (holding that a layperson is competent to identify a simple condition such as a broken leg). Nevertheless, a veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007); see also 38 C.F.R. § 3.159 (a)(2). Entitlement to service connection for irritable bowel syndrome (IBS) The Veteran submitted a claim of service connection for irritable bowel syndrome (IBS) in May 2013. The claim was denied in September 2014 on the grounds that the Veteran did not have a current disability. In October 2014 the Veteran submitted a timely notice of disagreement (NOD) and perfected his appeal with an April 2016 VA Form 9. Throughout the appeal the Veteran has maintained that he has IBS. Subsequently, in October 2018 the Board issued a remand order for the Veteran's gastroenterology care records to be added to the record, and for efforts to be made to retrieve private gastroenterology records. See October 2018 BVA Decision, p. 15. Following this remand, the Veteran's attorney responded with a VA Form 21-4142, in which the Veteran authorized release of information of his medical records. The Veteran identified treatment for IBS at Sepulveda VA Medical Center from 1993 to 2007, West LA VA Hospital from 1994 to 1997, from VA Southern Nevada Healthcare Southeast Clinic from 2007 to present and from VA Southern Nevada Healthcare System from 2013 to present. See June 2019 VA 21-4142 Authorization for Release of Information. The records identified in the Veteran's VA Form 21-4142 are of record and have been reviewed. The Board finds that the Veteran's claim of service connection for IBS must be denied on the grounds that he does not have a current disability. The Board is aware that the Veteran has not been provided a VA examination regarding his claimed IBS. When determining whether the duty to assist requires that a VA medical examination be provided, or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The first factor has not been met. A review of the Veteran's medical treatment records shows that before the Veteran submitted his claim, he denied any gastrointestinal symptoms in September 2002 and March 2005. See April 2013 CAPRI, pp. 18, 58. In May 2013 the Veteran claimed that he suffered from IBS. However, in February, April and June 2015 the Veteran was found to not have gastrointestinal symptoms. See March 2016 CAPRI, pp. 90, 92, 109, 136. Likewise, the Veteran was not found to have any gastrointestinal symptoms in February 2017, February 2018 and August 2018. See July 2019 CAPRI, pp. 27, 58, 96, 120, 163, 164. A review of the Veteran's medical treatment records has not uncovered any complaint, treatment or diagnosis for a gastrointestinal condition. The only indication of IBS in the record comes in the form of the Veteran's claim of benefits and does not include any lay statements from the Veteran describing the claimed condition or any symptomatology. The Board finds that, in the absence of any lay or medical evidence of a gastrointestinal symptoms, the duty to assist does not require that the Veteran be provided a VA examination as the record does not indicate that a current disability exists or that the Veteran suffers from either persistent or recurrent symptoms of any type. The requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if the disability resolves prior to the adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In light of the absence of any evidence of a disability, the Board finds that the Veteran does not have a current disability and the first element of service connection has not been established. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). In the absence of a current disability, the evidence preponderates against the claim and there is no reasonable doubt to be resolved. Accordingly, service connection for cervical strain must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102 ; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). REASONS FOR REMAND Whether new and material evidence has been received to reopen the previously denied claims of entitlement to service connection for residuals of a left shoulder injury, residuals of a right hip disability, for Arnold-Chiari malformation with syringomyelia, and for a left arm condition A review of the electronic record shows that the claims file is incomplete. In this regard, a December 1991 notification letter informed the Veteran that a left shoulder disability was not found to be service connected. It was noted that a copy of the rating decision, which detailed the evidence used to make the decision, was attached to the letter. However, the accompanying rating decision is not of record. Further, the initial claim of service connection for the left shoulder disability resulting in the December notification letter has not been associated with the claims file. Additionally, there is no evidence regarding a left shoulder disability prior to December 1991. On remand, all outstanding portions of the Veteran's file should be requested and associated with the electronic claims file. A review of the electronic record shows that the claims file is incomplete. In this regard, the Veteran's claim of service connection for a right hip disability was denied in a January 2005 rating decision. However, a complete copy of the rating decision is not of record. While the first 3 pages of the rating decision have been associated with the claims file, the remining pages, which includes the disposition of the right hip claim, are not of record. On remand, all outstanding portions of the Veteran's file should be requested and associated with the electronic claims file. A review of the electronic record shows that the claims file is incomplete. In this regard, an October 1999 notification letter informed the Veteran that service connection for Arnold-Chiari malformation with syringomyelia had been denied. It was noted that a copy of the rating decision was attached to the letter. However, the accompanying rating decision is not of record. Additionally, in the January 2009 rating decision, it was noted that the Veteran's claim of service connection was previously denied in a March 1999 rating decision. However, the March 1999 rating decision has not been associated with the claims file. On remand, all outstanding portions of the Veteran's file should be requested and associated with the electronic claims file. vailable VA clinical records suggests that the claimed disability is associated with the Veteran's Arnold-Chiari malformation. Specifically, in a March 2015 VA clinical record it was noted that the Veteran had upper left extremity numbness. It was reported that the loss of function of the left upper extremity had been ongoing since 1996 when the Veteran underwent syringomyelia and Arnold-Chiari surgery. In an October 2015 record, the physician assessed left elbow and hand dysfunction. It was documented that the Veteran reported progressive weakness since 1996. In light of the foregoing, the Board finds that the issue of whether new and material evidence has been received to reopen the previously denied claim of service connection for Arnold-Chiari malformation with syringomyelia could have an impact on the issue of entitlement to service connection for a left arm disability, thus, the issues are inextricably intertwined. Harris v. Derwinski, Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any appellate review meaningless and a waste of judicial resources, the two claims are inextricably intertwined). As such, the Board finds that the Veteran's claim of service connection for a left arm disability should be held in abeyance, pending resolution of the claim discussed above. While on previous remand, the RO requested the above records from the Veteran, the RO did not document all attempts made to obtain these missing records. If another avenue for obtaining these records is available such should be attempted and documented in the record. If no further avenues exist, such should also be documented. The matters are REMANDED for the following actions: Ensure that all outstanding documents have been associated with the Veteran's electronic claims file. Such documents should include the rating decision accompanying the December 1991 notification letter, the initial claim of service connection for a left shoulder disability and the accompanying medical evidence, a copy of the March 1999 rating decision, and a complete copy of the January 2005 rating decision. If these records cannot be obtained, the efforts undertaken should be documented and made of record. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (Continued on the next page) This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B , 7112 (West 2014) R. Erdheim Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Abels, 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.