Citation Nr: 1554170 Decision Date: 12/29/15 Archive Date: 01/07/16 DOCKET NO. 11-18 409A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for lead poisoning. 2. Entitlement to service connection for joint pains, including a low back disorder, to include as due to in-service lead exposure. 3. Entitlement to service connection for hypertension, to include as due to in-service lead exposure and/or as secondary to medications for a service-connected disability. 4. Entitlement to service connection for a dental disability, to include as due to in-service lead exposure. 5. Entitlement to service connection for chronic kidney disease, to include as due to in-service lead exposure and/or as secondary to hypertension. 6. Entitlement to service connection for GERD, to include as due to in-service lead exposure and/or as secondary to medications for a service-connected disability. ATTORNEY FOR THE BOARD B. Rideout, Associate Counsel INTRODUCTION The Veteran had active duty service from May 1983 to July 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Veteran's claims were previously remanded by the Board for further development in May 2014. The claims are back before the Board for appellate review. This appeal was processed using Virtual VA and the Veterans Benefits Management System paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims. First, the Board finds that the Veteran must be afforded additional VA examinations. Although the Veteran underwent VA examinations in August 2014 in connection with his claims for lead poisoning and claims based on in-service lead exposure, those examinations were inadequate. The August 2014 VA examiner noted that the Veteran had been exposed to lead while in-service, but provided negative nexus opinions, primarily based upon two of the Veteran's in-service lead exposure blood tests, which had returned normal results. However, the 2014 examiner failed to comment on a November 1986 test, which noted that the Veteran had been exposed to lead at an indoor gun range and indicated that the test results for lead exposure were above limits. The document reported and/or suggested use of a respirator. As this abnormal finding was not discussed in the 2014 VA examination reports, the Board finds that the 2014 VA medical opinions were based upon an inaccurate factual premise. As such, additional VA examinations and medical opinions must be obtained. Further, the Board notes that the 2014 VA examiner also mentioned that the Veteran had undergone lead poisoning testing at his VA medical center in July 2008. Review of the VA medical records indicates that the Veteran requested testing at an appointment in July 2008 and that such testing appears to have been ordered, but the results of any such testing were not found associated with the claims file. The Board finds that the AOJ should attempt to obtain these test results and associate them with the claims file. The new VA examination report should specifically comment on such results if found. Additionally, the Board notes that the Veteran has also offered testimony that his hypertension and GERD may be due to the medication prescribed for his service-connected disorders, to include depression. A March 2006 VA medical record, suggests that the Veteran's doctor noted that hypertension is a possible side effect of the medication prescribed for his depression. As such, the VA examiner should provide an opinion as to whether the medications the Veteran has been prescribed for his service-connected disorders, to include depression, are causing or aggravating his hypertension or GERD. The Veteran's VA medical records dated June 2010 also suggest that his chronic kidney disease may be related to his hypertension. As such, the new VA examination should include an opinion as to whether or not the Veteran's kidney disorder may be related to his high blood pressure. Finally, the Board notes that adjudication of the Veteran's claim for joint pain due to in-service lead exposure, expanded over the course of his appeal to include a recurrent lumbar spine disorder. The Veteran previously underwent VA examinations for a lumbar spine disorder in December 2010 and in August 2014. The December 2010 examiner noted that the Veteran had been treated for low back strain while in-service, and opined that a recurrent back strain injury could cause degenerative disc disease. The 2010 examiner provided a negative nexus opinion, noting that the Veteran had only been treated approximately once per year during service for his low back disorder. Review of the service treatment records, however, show that the Veteran was treated on a number of occasions during service, to include several times per year for several years. The August 2014 examiner also failed to address the recurrent nature of the Veteran's disorder. Thus, the Veteran should be afforded another VA examination, which discusses the Veteran's full service treatment records and addresses the recurrent nature of the Veteran's disorder. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment, to include any test results from the lead poisoning bloodwork ordered in July 2008. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file, to include all updated VA medical records. All information obtained must be made part of the paper or electronic file. All attempts to secure this evidence must be documented in the claims file. If, after making reasonable efforts, the records cannot be obtained, notify the Veteran and his representative and (a) identify the specific records that cannot be obtained; (b) briefly explain the efforts made to obtain those records; and (c) describe any further action to be taken with respect to the claim. The Veteran must then be given an opportunity to respond. 3. After the above development has been completed and all records associated with the claims file, the Veteran must be afforded a VA examination to determine the etiology of any lead poisoning, and/or joint pains, hypertension, dental disability, chronic kidney disease and/or GERD that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. An explanation for all opinions expressed must be provided. (a) The examiner must opine as to whether it is at least as likely as not any diagnosed lead poisoning disorder is causally or etiologically related to the Veteran's military service. The examiner must address all in-service and post-service testing for lead exposure, to include the Veteran's November 1984 and August 1989 tests, and the November 1986 test, wherein it was noted that the Veteran's measured concentration was above limits; (b) The examiner must opine as to whether it is at least as likely as not any diagnosed joint pain disorder, to include the Veteran's back disorder, is causally or etiologically related to the Veteran's military service, to include exposure to lead therein. All in-service and post-service testing for lead exposure must be discussed, to include the Veteran's November 1986 test, wherein it was noted that the Veteran's measured concentration was above limits. All in-service treatment for the Veteran's back must be addressed. (c) The examiner must opine as to whether it is at least as likely as not that hypertension is causally or etiologically related to the Veteran's military service. The following must be addressed: 1) all in-service and post-service testing for lead exposure, to include the Veteran's November 1986 test, wherein it was noted that the Veteran's measured concentration was above limits; 2) the March 2006 VA medical records showing that the Veteran's doctor appears to note that hypertension is a possible side effect of his prescribed medication for depression; and 3) the Veteran's November 2011 VA medical appointment, wherein his doctor seems to associate his high blood pressure disorder to lead exposure while in-service. (d) The examiner must also provide an opinion as to whether it is at least as likely as not that hypertension is caused or aggravated by the medication prescribed for the Veteran's service-connected depression. (e) The examiner must opine as to whether it is at least as likely as not any diagnosed dental disability is causally or etiologically related to the Veteran's military service, to include any exposure to lead therein. All in-service and post-service testing for lead exposure must be discussed, to include the Veteran's November 1986 test, wherein it was noted that the Veteran's measured concentration was above limits. (f) The examiner must opine as to whether it is at least as likely as not that chronic kidney disease is causally or etiologically related to the Veteran's military service, to include any lead exposure therein. The following must be addressed: 1) all in-service and post-service testing for lead exposure, to include the Veteran's November 1986 test, wherein it was noted that the Veteran's measured concentration was above limits; 2) August 2009 VA records noting that the kidney disorder did not present with "classic lead nephropathy" as chronic exposure presents with increased uric acid and gout symptoms, which were not present at that appointment; and 3) VA medical records, to include in July 2008, diagnosing gout. (g) The examiner must opine as to whether it is at least as likely as not that chronic kidney disease is caused or aggravated by the Veteran's hypertension. The examiner must address a June 2010 VA medical record suggesting that his kidney disorder may be related to hypertension. (h) The examiner must opine as to whether it is at least as likely as not that GERD is causally or etiologically related to the Veteran's military service. All in-service and post-service testing for lead exposure must be discussed, to include the Veteran's November 1986 test, wherein it was noted that the Veteran's measured concentration was above limits. (i) The examiner must also provide an opinion as to whether it is at least as likely as not that GERD is caused or aggravated by the medication taken for the Veteran's service-connected depression. 4. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2015). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. After completing the above actions, 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 should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case, and an appropriate period of time should be allowed for response. 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). 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015).