Citation Nr: 1648542	
Decision Date: 12/30/16    Archive Date: 01/06/17

DOCKET NO.  14-35 049	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUES

1.  Entitlement to service connection for ulcerative colitis, to include as secondary to herbicide and dioxin exposure.

2.  Entitlement to service connection for acute myeloid leukemia (AML), to include as secondary to herbicide and dioxin exposure.

3.  Entitlement to special monthly compensation based on aid and attendance/housebound status.

4.  Entitlement to an initial disability rating in excess of 10 percent for service-connected radiculopathy of the left lower extremity.

5.  Entitlement to an initial disability rating in excess of 10 percent for service-connected radiculopathy of the right lower extremity.  




REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

E. F. Brandau, Associate Counsel


INTRODUCTION

The Veteran has active duty service in the United States Army from October 1954 to August 1956.  He worked as a biologist at Fort Detrick during service.

These matters come before the Board of Veterans' Appeals (Board) from July 2013 and June 2015 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO).  

In August 2016 the Veteran testified before the undersigned Veterans Law Judge (VLJ) via videoconference.  A transcript of the hearing was prepared and added to the record.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The issues of entitlement to service connection for ulcerative colitis, to include as secondary to herbicide and dioxin exposure, and entitlement to special monthly compensation based on aid and attendance/housebound status are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The evidence is at least in relative equipoise as to whether the Veteran's AML is related to active duty service.  

2.  Throughout the period on appeal, the Veteran's radiculopathy of the left lower extremity manifested by pain and reduced sensation with mild incomplete paralysis of the left leg.

3.  Throughout the period on appeal, the Veteran's radiculopathy of the right lower extremity manifested by pain and reduced sensation with mild incomplete paralysis of the right leg.


CONCLUSIONS OF LAW

1.  The criteria for service connection for AML have been met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016).

2.  The criteria for an initial disability rating in excess of 10 percent for radiculopathy of the left lower extremity have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.124(a), Diagnostic Code 8520 (2016).   

3.  The criteria for an initial disability rating in excess of 10 percent for radiculopathy of the right lower extremity have not been met.  38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.124(a), Diagnostic Code 8520.   



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA has a duty to notify and assist a claimant in the development of a claim.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2016).

VA is required to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain.  38 C.F.R. § 3.159(b).  Compliant notice was provided for the increased rating claims in September 2012.  As it pertains to service connection for AML, the Veteran used VA Form 21-526EZ to file a Fully Developed Claim in November 2014.  The requisite notice was attached to that form, and the Veteran verified receipt of the notice.  Regardless, the Board's decision on the issue of entitlement to service connection for AML is fully favorable to the Veteran's claim, so there is no prejudice.

The Board notes that the Veteran's increased rating claims arise from his disagreement with the initial evaluation and that was assigned following the grant of service connection.  Once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007) ((section 5103(a) notice is no longer required after service-connection is awarded).

In addition, the Board finds that the duty to assist a claimant has been satisfied.  The Veteran's service treatment records are on file, as are various post-service medical records.  VA examinations have been conducted and opinions obtained.  

The Veteran was also afforded a hearing before the Board.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2016) requires that the VLJ who chairs a hearing explain the issues and suggest the submission of evidence that may have been overlooked.  As there is no allegation that the hearing provided to the Veteran was deficient in any way, further discussion of the adequacy of the hearing is not necessary.  Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016).  

After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  

Service Connection

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned.  38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)).  Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).
	
Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury.  See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).  

A Veteran who "served in the Republic of Vietnam" between January 9, 1962, and May 7, 1975, is presumed to have been exposed during such service to Agent Orange.  38 U.S.C.A. § 1116(f) (West 2014); 38 C.F.R. § 3.307(a)(6)(iii).  The record in this case shows that the Veteran did not serve in Vietnam but that he worked with dioxins as part of his position as a biologist at Fort Detrick, Maryland.  The Board notes that there was testing performed at Fort Detrick during the Veteran's tenure to develop both the aerial spray equipment and herbicide formulations for potential development in the Korean Conflict, and in so doing there were drums of the dioxins in Agent Orange stored at Fort Detrick.  The Board has conceded the Veteran's exposure to herbicides given his military occupational specialty as a biologist and in considering the lay evidence he has submitted. 

Furthermore, VA regulations provide for presumptive service connection for specific diseases associated with exposure to herbicide agents.  Those diseases that are listed at 38 C.F.R. § 3.309(e) shall be presumptively service-connected if there are circumstances establishing herbicide agent exposure during active military service, even though there is no record of such disease during service.   

The provisions for presumptive service connection nonetheless do not preclude a claimant from establishing service connection with proof of actual direct causation, on the basis that his exposure to Agent Orange led to the development of the claimed disability after service.  See Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994).

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  

When 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 in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b).

As an initial matter, the Board observes that AML is not among those diseases that are listed at 38 C.F.R. § 3.309(e), and that thus, service connection is not warranted on a presumptive basis.

The record contains various opinions regarding whether the Veteran's AML is related to his presumed herbicide exposure during service.  

The Veteran has submitted numerous studies of the use of dioxins and the medical effects of those exposed, including a National Vaccine Information Center report from December 2001; an article entitled "Anthrax Vaccine Causes Gulf War Syndrome" by Meryl Nass, MD; an article entitled "Anti-Squalene Antibodies Link Gulf War Syndrome to Anthrax Vaccine" from July 2012; a study entitled "Antibodies to squalene in U.S. Navy Persian Gulf War Veterans with chronic multisymptom illness" by Christopher J. Phillips, et. al, from December 2008; an article entitled "Anthrax Vaccine for Soldiers Serving in Iraq, Afghanistan and South Korea to Resume" from October 2006; a study entitled "Detailed Study Review of Anthrax Vaccine Adsorbed" compiled by the Military Vaccine Agency from January 2012; a study entitled "Repeated Immunization: Possible Adverse Effects: Reevaluation of Human Subjects at 25 Years" by Charles S. White, III, MD, et. al.; an article from the Army Times entitled "Agent Orange Estimate at Fort Detrick may rise" from February 2011; a study from the Army Corps of Engineers entitled "Archives Search Report Findings for Field Testing of 2, 4, 5-T and Other Herbicides" from April 2012; an article by Yanira Farray entitled "Fort Detrick likely exposed man to Agent Orange" from August 2010; an article entitled "The Complications of Agent Orange Exposure" by Lela Norman; a study entitled "A Report by the National Academies with Respect to Latency Period After Exposure to Agent Orange"; a report entitled "Report to the Secretary of the Department of Veterans Affairs on the association between adverse health effects and exposure to Agent Orange" by Admiral E.R. Zumwalt Jr. from 1990; an Institute of Medicine National Academies of Sciences study entitled "Veterans and Agent Orange: Length of Presumptive Period for Association Between Exposure and Respiratory Cancer"; a study entitled "The History of the U.S. Department of Defense Programs for the Testing, Evaluation, and Storage of Tactical Herbicides" by Alvin L. Young, PhD from December 2006; an article by David P. Steesma, MD FACP "Agent Orange, United States Military Veterans and Myelodysplastic Syndrome" from October 2012; an article entitled "Cancer Mortality in Workers Exposed to 2,3,7,8-Tetrachlorodibenzo-P-Dioxin" by Marilyn A. Fingerhut, PhD, et. al. from January 1991; and an executive summary from the World Health Organization entitled "Assessment of the health risk of dioxins: re-evaluation of the Tolerable Daily Intake" from 1998. 

The Veteran has also submitted a buddy statement from H.A.F., a veteran who also served at Fort Detrick and described his exposure to Agent Orange in the course of his duties.  

In January 2015 the Veteran's private physician M. Wieduwilt, M.D., submitted a statement indicating that the Veteran's exposure to Agent Orange during his military service is a potential cause of his leukemia.  Several months later the same physician wrote a letter opining that "given his history and the fact that there is no history of leukemia in his family his exposure to Agent Orange is as likely as not to be the cause of his leukemia".  

In December 2015 the Veteran's file was reviewed by a VA examiner, who opined that the Veteran's AML was less likely than not caused by Agent Orange exposure during service.  In making this determination the VA examiner noted that the Veteran was not diagnosed with AML until age 80, many years after separation from service, and that the Veteran was only enrolled in service for 21 months.  The VA examiner also noted that the association between herbicides and AML was inconclusive but not certain, and that the Veteran had other risk factors for AML, including male sex, older age, and a smoking history.  

Having reviewed the conflicting medical evidence of record, the Board concludes that the evidence is in relative equipoise as to whether the Veteran's AML is related to Agent Orange exposure.  In reaching this conclusion, the Board acknowledges the various studies and lay evidence submitted by the Veteran as well as the VA examiner's opinion regarding leukemia and Agent Orange exposure, to include consideration of other contributing factors.  However, the Board is compelled by the competent statements of Dr. Wieduwilt, a specialist in oncology and the Veteran's treating physician, regarding this individual case.  The Board finds that those opinions are supported by sound rationale and are based on the treatment relationship and the physician's expertise in the field.  

In light of the above discussion, the Board finds that there is an approximate balance of positive and negative evidence regarding the merits of this issue, and that doubt should be resolved in favor of the Veteran.  Accordingly, service connection for AML is granted.

Increased Rating

Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Separate diagnostic codes identify the various disabilities.  Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1.  Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2016); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2016); where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (2016).  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  

A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known "staged" ratings.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

The Veteran's lower extremity radiculopathy has been rated as 10 percent disabling for each extremity as of August 21, 2012, his application date.  Throughout the duration of the appeal, the Veteran has contended that he is entitled to a higher disability rating.  

The Veteran's disability is rated as neuritis of the sciatic nerve under Diagnostic Code 8620.  38 C.F.R. § 4.124a.  Sciatic nerve disability is rated as follows:  80 percent for complete paralysis of the nerve; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost.  Ratings can also be assigned for incomplete paralysis of the nerve.  When incomplete paralysis is severe with marked muscular atrophy a 60 percent rating is assigned, if moderately severe a 40 percent rating is assigned, if moderate a 20 percent rating is assigned, and if mild a 10 percent rating is assigned.  

Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis.  The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis.  38 C.F.R. § 4.123 (2016).  

Following a review of the record, the Board finds that ratings in excess of 10   percent are not warranted for the Veteran's left and right lower extremity radiculopathy, as the evidence more nearly approximates mild incomplete paralysis of the sciatic nerves.  38 C.F.R. § 4.124a, Diagnostic Code 8620.  

In October 2011 the Veteran sought private treatment for his lower extremity weakness, and the treatment provider noted that the Veteran had increased pain in the gluteal hip muscles when climbing steps.  He had an electromyogram nerve conduction study that showed poor pronation with absent deep tendon reflexes and poor pedal proprioception, but he was noted to have full power in the legs.  The Veteran's passive range of motion in the hips was painful and he had a waddling gait.  He was diagnosed with large fiber sensory peripheral neuropathy and was encouraged to do physical therapy exercises.

The Veteran first underwent VA examination in connection with his claim in October 2012.  At the time the Veteran reported that he had back pain since active duty service and that it had worsened in the prior nine years and caused him some difficulty walking; he was using a cane during the examination.  The Veteran asserted that he had flare-ups of his back disability with prolonged walking, and that he had to rest for 30 minutes afterwards.  On physical examination he had normal strength in the lower extremities and there was no evidence of atrophy.  He did have mildly reduced reflexes and decreased sensation in the lower extremities, but his straight leg raise tests were negative, suggesting that the Veteran did not have radiculopathy.  The examiner found that radiculopathy was not affecting the lower extremities.

In March 2013 the Veteran again underwent VA examination in connection with his claim.  At the time the Veteran reported that he could stand for fifteen minutes and walk for 500 yards with the cane, but that he had leg pain at 250 yards.  During his physical examination he had normal strength in the lower extremities, and there was no evidence of muscle atrophy.  Although the Veteran had decreased sensation in the lower extremities, his reflexes were normal.  The Veteran was noted to have mild numbness in the lower extremities and mild intermittent pain in the left lower extremity, but his straight leg raise test was negative bilaterally.  The VA examiner found that the Veteran had mild radiculopathy bilaterally.  A few weeks afterwards the Veteran's private physician wrote a letter indicating that the Veteran had pain, numbness, and weakness in the lower extremities, and that he recommended physical therapy exercises.  

Overall the Board finds that the evidence is consistent with a 10 percent disability rating for each lower extremity.  See 38 C.F.R. § 4.124a, Diagnostic Codes 8520, 8620, 8720.  The Veteran has reported ongoing pain and diminished sensation in the lower extremities.  At the Veteran's first VA examination he had some evidence of mildly reduced reflexes, but he also exhibited full strength and no muscle atrophy.  During the second VA examination the Veteran again reported pain and weakness in the lower extremities, and while the VA examiner indicated that the Veteran had lower extremity numbness bilaterally, the Veteran had normal reflexes and normal strength in the lower extremities.  Despite the Veteran's contentions to the contrary, the Board finds that the physical examination findings show only mild deficits consistent with a 10 percent disability rating for each lower extremity.  The Veteran testified to having gait difficulties, and this was also noted in the treatment notes, but the Board finds that these difficulties are accounted for with a 10 percent disability rating for each extremity.  The Board notes that neither VA examiner concluded that the Veteran had more than mild deficits, nor did the Veteran's private physician.

Accordingly, the Board finds that the evidence more nearly approximates mild incomplete paralysis of the sciatic nerve of the left and right lower extremities, consistent with the assigned 10 percent disability ratings.  A higher schedular rating is not warranted as the symptoms described above reflect no more than mild incomplete paralysis. 

The Board concludes that the medical findings on examinations are of greater probative value than the Veteran's allegations regarding the severity of his bilateral lower extremity radiculopathy.  The symptomatology noted in the medical and lay evidence during this period has been adequately addressed by the 10 percent evaluations assigned and does not more nearly approximate the criteria for a higher schedular evaluation at any time during the relevant period on appeal.  See 38 C.F.R. § 4.124a, Diagnostic Code 8520; see also Hart, 21 Vet. App. 505. 

In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable in the instant appeal.  See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990).

Other Considerations 

Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating.  First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating.  See also 38 C.F.R. § 3.321(b)(1) (2016).  

The Veteran's lower extremity radiculopathy disability is primarily manifested by pain and decreased sensation.  These symptoms are contemplated in the applicable rating criteria.  See 38 C.F.R. § 4.124a.  While the Veteran has complained of difficulty ambulating long distances and having a waddling gait; such complaints are contemplated by the rating criteria and the provisions of 38 C.F.R. §§ 4.40, 4.45 and 4.59 (2016), as these situations arise because of the above factors.  The Board acknowledges that the Veteran uses a cane to alleviate his symptoms.  Although the use of these aides is not specifically contemplated under the rating criteria, the symptoms corrected/alleviated by the use them are addressed.  In fact, the Veteran's VA examinations describe the level of his disability when he is not using any of these items and, as noted above, those symptoms are contemplated under the ratings criteria.  C.f. Jones v. Shinseki, 26 Vet. App. 56 (2012) (holding that the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria).  Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluations are, therefore, adequate.  See Thun, 22 Vet. App. at 115.  As such, the Board concludes that referral for extraschedular consideration is not warranted.

Here, the Board finds the Veteran's disability picture is not so unusual or exceptional in nature as to render the ratings assigned inadequate.  The Board does not find that the Veteran has described other functional effects that are "exceptional" or not otherwise contemplated by the assigned evaluation.  Rather, his description of his lower extremity radiculopathy disability is consistent with the degree of disability addressed by the currently assigned evaluations.  Therefore, the rating criteria are adequate to evaluate the Veteran's disability and referral for consideration of an extraschedular rating is not warranted.  See 38 C.F.R. §§ 3.321(b)(1), 4.124a, Diagnostic Code 8520; see also VAOGCPREC 6-96; 61 Fed. Reg. 66749 (1996).

The Board notes that under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced.  The Court, in Yancy v. McDonald, 27 Vet. App. 484, 495 (2016), subsequently held that the Board is required to address whether referral for extraschedular consideration is warranted for a Veteran's disabilities on a collective basis only when that issue is argued by the claimant or reasonably raised by the record through evidence of the collective impact of the claimant's service-connected disabilities.  Neither scenario applies to the instant case.  

The Court has held that a TDIU claim is part and parcel of an increased rating claim when raised by the record.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  As a result, the Board has jurisdiction to consider the Veteran's possible entitlement to a TDIU when the issue is raised by assertion or reasonably indicated by the evidence and is predicated, at least in part, on the severity of the service-connected disability in question, regardless of whether the RO has expressly addressed this additional issue.  See VAOPGCPREC 6-96 (Aug. 16, 1996); see also Caffrey v. Brown, 6 Vet. App. 377 (1994); Fanning v. Brown, 4 Vet. App. 225, 229 (1993); EF v. Derwinski, 1 Vet. App. 324 (1991).  

Here, the Veteran has not asserted that he is unable to work as a result of his service-connected lower extremity radiculopathy, nor has the issue otherwise been raised by the record.  The Veteran reported in one instance that he stopped working due to his ulcerative colitis, which is currently not service-connected.  Moreover, the Board notes that the Veteran has been receiving disability benefits from VA since separation from service, and that he has never made a claim for TDIU.  There is no indication that the Veteran required any special work accommodations when he was working, and the Veteran has not asserted that he needed such assistance.  As such, the Board finds the issue of entitlement to a TDIU has not been raised.
ORDER

Entitlement to service connection for AML is granted.

Entitlement to an initial disability rating in excess of 10 percent for service-connected radiculopathy of the left lower extremity is denied.

Entitlement to an initial disability rating in excess of 10 percent for service-connected radiculopathy of the right lower extremity is denied.  


REMAND

Ulcerative Colitis

The Veteran asserts that he is entitled to service connection for his ulcerative colitis, due in part to his exposure to herbicides and dioxins in service.  He has noted that ulcerative colitis is an autoimmune disorder subject to presumptive service connection under 38 C.F.R. § 3.309.  Service connection was initially denied because there was no evidence of an in-service event or injury.  The Veteran had submitted a statement from his private physician indicating that there was "a possibility that an autoimmune disease of this nature could theoretically have some contribution from the chemicals and viruses the patient was exposed to".  When the Veteran underwent private examination in July 2014, the examiner confirmed a current diagnosis of ulcerative colitis, but did not comment on whether the disability was related to active duty service.  Since the examination, the Veteran has submitted evidence of medical studies showing the effects of dioxins and Agent Orange on autoimmune disorders.  As there has been no VA opinion on the etiology of the Veteran's ulcerative colitis, the Board finds that remand is necessary to obtain a VA examination to ascertain the nature and etiology of this disability.  




Aid and Attendance

In a February 2015 statement, the Veteran asserted that due to his disabilities he was housebound and bedridden.  He indicated that his wife was also compromised and that she was unable to take care of him at home.  Nonetheless, the Veteran has not provided evidence to support his housebound condition.  Therefore, on remand, with the Veteran's assistance, the AOJ should elicit evidence to support the Veteran's assertions that he is housebound or bedridden such that aid and attendance would be necessary.  Moreover, the Veteran's claims file should be reviewed by a VA examiner to determine whether the Veteran's physical condition renders him so helpless as to be in need of regular aid and attendance due to his service-connected disabilities.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).  

Additionally, the Veteran receives continuous treatment through VA, and the Board finds that the AOJ should obtain and associate with the file VA treatment records dated from November 2015 to present.  See Bell v. Derwinski, 2 Vet. App. 611 (1992).

Accordingly, the case is REMANDED for the following actions:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Obtain and associate with the record VA treatment records for the Veteran dated from November 2015 to present.  All actions to obtain the requested records should be fully documented in the claims file.  If they cannot be located or no such records exist, the Veteran and his representative should be so notified in writing.  

2.  Schedule the Veteran for a VA examination to determine the current nature and etiology of his ulcerative colitis.  The Veteran's claims file should be made available to the examiner in conjunction with the examination.  Any medically indicated tests should be accomplished.  

After a review of the evidence, to include the Veteran's service treatment records, private treatment records, and with consideration of the Veteran's lay statements regarding his symptoms and their onset, to include the medical studies the Veteran has submitted discussing dioxin and Agent Orange exposure, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that ulcerative colitis began in service, was caused or aggravated by service, or is otherwise related to service.  The examiner is asked to discuss the Veteran's contentions that his ulcerative colitis may be related to exposure to anthrax, benzene, dioxin, or Agent Orange.  

"Aggravation" is defined as a permanent worsening beyond the natural progression of the disease or disability.  

A complete rationale should be provided for any opinion or conclusion expressed.

3.  Forward the Veteran's claims file to a VA examiner to determine whether the Veteran's physical condition has rendered him so helpless as to be in need of regular aid and attendance due to his service-connected disabilities.  Only if necessary, schedule the Veteran for a physical examination.  After a review of the evidence, to include the Veteran's service treatment records, private treatment records, and with consideration of the Veteran's lay statements regarding his symptoms and their onset the examiner should provide an opinion as to whether the Veteran's physical condition has rendered him so helpless as to be in need of regular aid and attendance due to his service-connected disabilities.  

4.  Thereafter, re-adjudicate the claims of entitlement to service connection for ulcerative colitis, to include as secondary to exposure to herbicides and dioxins, and entitlement to special monthly compensation based on aid and attendance/housebound status.  If any benefit sought on appeal remains denied, issue the Veteran and his representative a Supplemental Statement of the Case and provide a reasonable opportunity to respond before the case is returned to the Board for further appellate review.  

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims must be afforded expeditious treatment.  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 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




______________________________________________
Nathan Kroes
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs

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