Citation Nr: 0000905 Decision Date: 01/12/00 Archive Date: 01/27/00 DOCKET NO. 94-42 750 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to service connection for a stomach disorder. 2. Entitlement to an increased evaluation for residuals of a gunshot wound of the lumbar region, Muscle Group XX, currently evaluated as 20 percent disabling. 3. Entitlement to an increased evaluation for anxiety reaction currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Nancy E. Killeen, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant INTRODUCTION The veteran served on active duty from January 1944 to August 1945. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision of May 1993 from the Reno, Nevada, Department of Veterans Affairs (VA) Regional Office (RO). In December 1996, the Board remanded the case to the RO for further development. FINDINGS OF FACT 1. The claim for service connection for gastroesophageal reflux disease (GERD) is plausible based on the evidence of record. 2. A preponderance of the evidence shows that the veteran's GERD is proximately due to or the result of a service- connected disorder. CONCLUSIONS OF LAW 1. The claim for service connection for GERD is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The veteran's GERD was incurred secondary to his service- connected psychiatric disorder. 38 U.S.C.A. §§ 1110, 5107(a) (West 1991); 38 C.F.R. §§ 3.303, 3.310(a) (1999); Allen v. Brown, 7 Vet. App. 439, 448 (1995). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Criteria Pursuant to 38 U.S.C.A. § 5107(a), a person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. The United States Court of Appeals for Veterans Claims (Court) has held that a well-grounded claim is "a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of § [5107(a)]." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The Court has also held that although a claim need not be conclusive, the statute provides that it must be accompanied by evidence that justifies a "belief by a fair and impartial individual" that the claim is plausible. Tirpak v. Derwinski, 2 Vet. App. 609, 610 (1992). The Court has held that "where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is 'plausible' or 'possible' is required." Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993) (citing Murphy, at 81). The Court has held that a well-grounded claim requires competent evidence of current disability (a medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus between the in-service injury or disease and the current disability (medical evidence). See Epps v. Brown, 126 F.3d. 1464, 1468 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). In order to establish service connection for a claimed disability the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. §§ 1110 (West 1991); 38 C.F.R. § 3.303 (1999). Where certain diseases are manifested to a compensable degree within the initial post-service year, service connection may also be granted on a presumptive basis. 38 U.S.C.A. §§ 1101, 1112 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.307, 3.309 (1999). When a disability is not initially manifested during service or within an applicable presumptive period, service connection may nevertheless be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in or aggravated by service. 38 U.S.C.A. § 1113(b) (West 1991 & Supp. 1999); 38 C.F.R. § 3.303(d) (1999). Service connection may also be granted for disability, which is proximately due to, or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a) (1999). For aggravation of a nonservice-connected condition, which is proximately due to, or the result of service-connected disease or injury, a claimant will be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after consideration of all of the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt doctrine in resolving each such issue shall be given to the veteran. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.3 (1999). Analysis Based on numerous VA and private medical reports showing the veteran has had continuous gastrointestinal (GI) complaints since separation from active service, and the February 1998 medical opinion by the VA examiner, which relates the development of GERD secondary to the veteran's service- connected generalized anxiety disorder, the Board finds that the veteran's claim is well grounded. The Board has reviewed the evidence of record and finds it more than sufficient for helping to resolve the issue at hand. The evidence includes VA and private medical records and a VA medical opinion. The claims folder discloses that additional medical records have been submitted directly to the Board. However, the veteran has waived his procedural right for initial RO consideration. 38 C.F.R. § 20.1304 (1999). The Board is satisfied that all relevant facts have been properly developed, and that no further assistance is required in order to satisfy the duty to assist mandated by 38 U.S.C.A. § 5107(a) (West 1991). The veteran argues that he has had chronic GI problems since his in-service gunshot wound in 1945. The veteran contends that his service medical records show that he complained of constant stomach pain while hospitalized for his wounds. He also contends that the post-service VA and private medical treatment records reveal ongoing examination and treatment for constant recurrences of stomach problems since that time. He also argues that a treating physician has rendered an opinion, which relates his GI problems to service. Although the veteran's service medical records do not show a diagnosis of a chronic GI disorder, they show that the veteran complained of various digestive problems and abdominal distress while he was hospitalized for treatment of the gunshot wound to the low back area. The post-service medical records show the veteran complained of continued GI problems during VA examinations conducted following separation. During VA orthopedic and neuropsychiatric examinations performed in January 1947, the veteran complained of continued stomach pain, heartburn and nausea. During the VA neuropsychiatric examination performed in January 1950, the physician diagnosed the veteran's epigastric pain and diarrhea as a psychogenic GI reaction. In November 1954, the veteran's treating physician opined that there was a functional basis for the veteran's abdominal complaints. The physician suggested that this might have been duodenal ulcer because that condition frequently develops secondary to severe anxiety reaction. Because of continued complaints the veteran underwent an upper GI series in January 1955, which was normal. That psychiatrist diagnosed conversion reaction. In March 1955, another treating physician opined that the veteran's symptoms were a psychophysiologic reaction of his GI system. While these records do not establish that the veteran had an organic GI disorder at that time, they do establish a continuity of GI symptomatology. The recent VA and private outpatient treatment records show continued GI complaints by the veteran. The veteran underwent an upper GI series with small bowel follow-through in January 1991, but examination was normal except for incidental identification of duodenal diverticula. Magnetic Resonance Imaging (MRI) of the upper abdomen was performed later that month because of the possibility of liver hemangiomas. The physician determined the lesions to be focal fatty infiltration and the remaining upper abdominal structures were unremarkable. Subsequently in early 1992, the veteran's treating physician diagnosed the veteran's ongoing GI complaints as reflux esophagitis. In September 1992, one of the treating physicians summarized the veteran's complaints and the diagnostic studies performed. The physician noted that the only diagnosis that could be made was non-ulcer dyspepsia, for which the veteran was treated with Carafate. In November 1992, a VA physician who had been treating the veteran since July 1991, diagnosed the veteran with peptic disease. Ultimately in August 1993, the veteran underwent an esophagastroduodenoscopy. The post-operative diagnoses were normal esophagus, mild antral gastritis and otherwise normal examination of the upper GI tract. The report also noted that an underlying esophageal motility disorder could not be ruled out. In a December 1993 letter between the treating physicians, it was noted that there was agreement that the veteran's symptoms were most likely secondary to chronic, mild gastroesophageal reflux. The VA outpatient treatment records dated through 1995 show that the treating diagnosis for his symptoms was GERD. In 1996, the veteran's treating physician diagnosed GERD and a history of reflux laryngitis. Although these medical records do not include opinions relating the veteran's disorder to service or secondary to a service-connected disability, they demonstrate continued complaints of GI symptoms and a medical diagnosis of a chronic GI disorder. The veteran underwent a double contrast upper GI series in February 1998 because of continued heartburn and reflux. The physician concluded that the study showed a normal esophagus, specifically the distal esophagus and gastroesophageal junction was normal with no strictures, ulcerations, or mucosal edema. The physician also concluded that this was a normal upper GI series and proximal small bowel. Later that month, a psychiatrist reviewed the claims folder and conducted an examination. This physician concluded that the veteran's diagnoses included GERD. Several days later, the veteran underwent a VA examination because of his complaints. This examiner also reviewed the evidence in the claims folder. The examiner also performed a physical examination and reviewed the prior diagnostic studies. The examiner concluded that the proper diagnosis is GERD with esophageal irritation, which is secondary to the veteran's generalized anxiety disorder. This is the only evidence of record that includes a medical opinion on the issue of causation. The Board notes that, generally speaking, lay persons are not competent to offer evidence that requires medical knowledge. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992) (holding that a witness must be competent in order for his statements or testimony to be probative as to the facts under consideration). The question in this case requires competent medical evidence because it involves medical causation. The above evidence establishes a current medical diagnosis of GERD. The only medical evidence of record specifically addressing the issue of causation is the February 1998 VA examination report. This opinion is probative since this examiner reviewed all the evidence of record and had the opportunity to examine the veteran. This examiner is qualified to assess the nature and severity of the veteran's current GI disorder and its etiology. This examiner concluded that the current disability, i.e., GERD, is secondary to the veteran's generalized anxiety disorder. This evidence demonstrates a direct causal relationship between a service-connected disability and the development of a secondary disability. Again, this is the only evidence of record that addresses this issue. The Board is not competent to supplement the record with its own unsubstantiated medical conclusion as to whether or not the current GI disorder diagnosed as GERD is secondary to the veteran's generalized anxiety disorder or any other service-related disability or event. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). For these reasons, the Board finds that a preponderance of the evidence shows that the veteran's GERD is proximately due to or the result of a service-connected disorder. Consequently, the Board concludes that the veteran's GERD was incurred secondary to his service-connected psychiatric disorder. 38 U.S.C.A. §§ 1110, 5107(a) (West 1991); 38 C.F.R. §§ 3.303, 3.310(a) (1999); Allen v. Brown, 7 Vet. App. 439, 448 (1995). ORDER Service connection for GERD is granted. REMAND In December 1996, the Board remanded the case to the RO for further development. The Board noted that the veteran had raised the issue of service connection for degenerative joint and disc disease involving the lumbosacral spine. The veteran argued that degenerative joint and disc disease involving the lumbosacral spine are either residuals of the in-service trauma, i.e., gunshot wounds to the lumbar region sustained in February 1945, or developed secondary to his service-connected residuals. The Board referred this issue to the RO for adjudication. In a December 1997 rating decision the RO determined that degenerative disc and joint disease and scoliosis of the lumbosacral spine could not be disassociated from the veteran's in-service combat injury. In essence, the RO granted service connection for this low back disability. However, the RO amended the veteran's service-connected disability, i.e., residuals of the gunshot wound to the lumbar region with injury to Muscle Group XX, to include degenerative disease and scoliosis. The RO did not assign a separate rating for this service-related low back disability. The RO assigned a single 20 percent rating for all symptomatology. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14. The Court has held that a veteran may not be compensated twice for the same symptomatology as "such a result would overcompensate the veteran for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding in violation of the provisions of 38 C.F.R. § 4.14. The Court has acknowledged, however, that when a veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different diagnostic codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). The issue of the proper rating for the service-connected residuals of a gunshot wound of the lumbar region, Muscle Group XX, is predicated on functional impairment to the postural support of the body and extension and lateral movements of the spine. 38 C.F.R. § 4.73, Diagnostic Code 5320 (1999). The issue of the proper rating for the service- connected degenerative disc and joint disease and scoliosis of the lumbosacral spine can be based on limitation of motion of the lumbar spine, neurological impairment cause by intervertebral disc syndrome, or by analogy to lumbosacral strain. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5292, 5293, 5295 (1999). The RO should assign separate ratings for residuals of a gunshot wound of the lumbar region, Muscle Group XX, and degenerative disc and joint disease and scoliosis of the lumbosacral spine. In support of the claim is a December 1999 examination report and medical opinion from the veteran's treating physician. The physician reported that the veteran has had ongoing lumbar spine symptomatology since the 1945 gunshot wound. The physician noted that the radiographic reports disclosed moderately severe levoscoliosis. The impressions included rotational scoliosis. The physician stated that it was reasonable to assume that the veteran has a facet syndrome accounting for his low back pain. The physician also stated that the veteran may be a candidate for facet injections on a diagnostic basis followed by facet neurolytic procedures of the lumbar spine. However, the physician stated that the veteran needs to have a MRI of the lumbar spine, which focuses specifically on the paraspinal soft tissue in the upper lumbar region in order to document underlying pathology. The physician indicated that these procedures would have to be performed at the VA. However, the evidence shows that the veteran underwent an L4-L5 bilateral decompression, an epidurogram and epidural narcotic and steroid injections. The veteran's service-connected disabilities have not been evaluated since the December 1998 surgery. In the December 1996 remand decision the Board requested a VA social and industrial survey in order to clarify the veteran's medical, social, educational, and employment history. The evidence shows the veteran underwent a VA mental disorders examination in June 1997. An internal VA memorandum dated in September 1997 indicates that the veteran had been scheduled for a VA social and industrial survey but the veteran failed to report. In September 1998, the veteran's representative stated that the veteran did not receive notification of the scheduled VA social and industrial survey and requested that this be performed. The Board notes that the claims folder does not include a copy of a VA letter notifying the veteran of an impending VA social and industrial survey. Although the veteran was provided additional mental disorders examinations in April and November 1998, the veteran was not provided a VA social and industrial survey. The RO is advised that the Board is obligated by law to ensure that the RO complies with its directives, as well as those of the Court. The Court has stated that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance, and a further remand of the case will be mandated. See Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the issues on appeal must be remanded in order to ensure that the Board's remand directives are complied with. The veteran has the right to submit additional evidence and argument on the matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. Under these circumstances, this case is REMANDED for the following actions: 1. The RO should obtain any pertinent outstanding private and VA psychiatric, GI or orthopedic inpatient or outpatient treatment records, which have not been obtained. 2. A VA social and industrial survey should be conducted in order to clarify the veteran's medical, social, educational, and employment history. The social worker should elicit and set forth pertinent facts regarding the veteran's medical history, education, employment history, social adjustment, and current behavior and health, including specific information concerning employment he has attempted since 1986 when he retired as a certified public accountant. 3. The veteran should be afforded a VA psychiatric examination to determine the severity of his current psychiatric impairment due to the service-connected psychiatric disorder. All appropriate tests and studies should be performed and all findings should be reported in detail. The claims folder must be made available to the examiner for review prior to the examination. The examiner is requested to assign a numerical code under the Global Assessment of Functioning scale (GAF) provided in the Diagnostic and Statistical Manual for Mental Disorders as it relates to the veteran's disability. It is imperative that the examiner includes a definition of the numerical code assigned. The claims folder and a copy of this REMAND must be made available to the physician for review prior to the examination. 4. The veteran should be afforded VA orthopedic and neurologic examinations to determine the severity of the veteran's residuals of a gunshot wound of the lumbar region, Muscle Group XX, and degenerative disc and joint disease and scoliosis of the lumbosacral spine. All appropriate tests and studies should be performed and all findings should be reported in detail. As suggested in the December 1999 examination report and medical opinion from the veteran's treating physician, this may include a MRI of the lumbar spine, which focuses specifically on the paraspinal soft tissue in the upper lumbar region in order to document underlying pathology. That physician stated that it was reasonable to assume that the veteran has a facet syndrome accounting for his low back pain. That physician also stated that the veteran may be a candidate for facet injections on a diagnostic basis followed by facet neurolytic procedures of the lumbar spine. The claims folder and a copy of this REMAND must be made available to the physicians for review in connection with each examination. Each physician should identify all impairment, including limitation of motion and functional loss due to pain or other pathology, and provide an opinion as to whether each impairment is due to the residuals of the gunshot wound of the lumbar region, Muscle Group XX, or is due to the degenerative disc and joint disease and scoliosis of the lumbosacral spine. 5. Thereafter, the RO should review the claims file to ensure that all of the foregoing requested development has been completed. In particular, the RO should review the requested examination reports and medical opinions to ensure that they are responsive to and in complete compliance with the directives of this remand, and if they are not, the RO should implement corrective procedures. Stegall v. West, 11 Vet. App. 268 (1998). 6. After undertaking any development deemed essential in addition to that specified above, the RO should readjudicate the issues of an increased evaluation for residuals of a gunshot wound of the lumbar region, Muscle Group XX, and an increased evaluation for anxiety reaction. The RO should assign separate ratings for these service- connected disabilities in accordance with Esteban v. Brown, 6 Vet. App. 259 (1994). If any benefit sought on appeal remains denied, the RO should issue an appropriate supplemental statement of the case to the veteran and his representative to include all pertinent laws and regulations not previously given. They should be afforded an opportunity to respond to the supplemental statement of the case and submit any additional evidence in support of the claims. Thereafter, the case should be returned to the Board for further appellate consideration. RICHARD E. COPPOLA Acting Member, Board of Veterans' Appeals