Citation Nr: 0810177 Decision Date: 03/27/08 Archive Date: 04/09/08 DOCKET NO. 03-24 544 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for a gastrointestinal disorder, esophagitis and a throat disorder, claimed as due to toxic gas exposure. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The appellant had periods of active duty for training, and inactive duty for training with the West Virginia Air National Guard from October 1979 to December 1981. This matter is before the Board of Veterans' Appeals (Board) from an October 2002 decision of the Baltimore, Maryland Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction of the claims folder was subsequently transferred to the Huntington RO. In May 2004, a hearing was held before the undersigned, a transcript of this hearing is of record. In May 2005, the Board denied the appellant's claim for service connection for a gastrointestinal disorder, esophagitis and a throat disorder, claimed as due to toxic gas exposure. The appellant appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In December 2006, the Court issued a decision that that vacated the portion of the May 2005 Board decision that denied the claim on appeal, and remanded the matter for readjudication and the issuance of a new decision. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on her part is required. REMAND The December 2006 Court Order essentially found that the Board failed to offer sufficient reasons and bases for its findings and conclusions on all material issues of fact and law in accordance with 38 U.S.C.A. § 7104(d)(1). Specifically, the Court found that the Board's May 2005 decision did not weigh the private medical evidence in favor of the appellant's claim, or discuss any shortcomings in a December 2004 VA examination report. The evidence of record includes an April 2003 letter from the appellant's private physician, Dr. M., who reported that the appellant had been under his care since October 2003, and carried a diagnosis of congestive heart failure with bilateral pleural fluid, and ejection fraction of 40 percent. Dr. M. also stated that an August 2002 private endoscopy was notable for showing non-specific gastritis. Dr. M. wrote, "I can't account for congestive heart failure and gastritis to exposure to tear gas in 1981." In an August 2003 letter, Dr. M. stated, "[The appellant] is under my care for acid reflux disease with gastritis and congestive heart failure; she also had a 4 vessel coronary art[ery] bypass graft [in] May [2003]. She is now disabled and there is a "possibility" that both of her conditions were caused by exposure to tear gas and herbicides in 1981 while on active duty . . . ." In a September 2003 letter, Dr. M. referred to his first two letters and reported that "[t]he only reason I cannot be more certain of the possibility of [the appellant's] conditions of heart disease and gastritis and their cause is that I was not her treating physician [in 1981]." Dr. M. indicated that he had the opportunity to review the March 1981 service medical record that documents the appellant's tear gas exposure and her resulting symptoms and treatment. He stated, "I . . . need to clarify that when I say that most likely possible that by reading [the appellant's] military active duty report of being admitted to the emergency room the day of exposure to this deadly gas exercise has explained a lot of her medical problems of gastritis an [sic] esophagitis and has lead [sic] into her congestive heart failure and yes my opinion is service connection is a possibility." The Board notes that the Court has held that medical opinions that are speculative, general, or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993). On VA examination in December 2004, it was noted that the claims folder was reviewed in conjunction with the examination. The examiner reviewed and summarized in detail the March 1981 service medical record that documents the appellant's exposure to tear gas. The appellant reported that since her exposure to tear gas in-service, she has had stomach problems that include reflux symptoms, bloating, and nausea. On review of the appellant's medical history, the examiner noted that a March 2003 echocardiogram showed congestive heart failure and pleural effusion, and left ventricular function that was reduced to 40 percent ejection fraction. There was also mild pulmonary hypertension. She underwent a 4 vessel CABG for coronary heart disease in May 2003, and in October 2003 she was found to have an enlarged thyroid with nodules, with differential diagnosis of a multinodular goiter. It was noted that the appellant's surgical history included a cholecystectomy in 2000, and an endarterectomy with stents of the left carotid artery in mid- 2003. The examiner noted that the appellant had a smoking history of approximately 10 cigarettes daily for 20 years, but stopped smoking three years prior to the examination. She reported that she worked in construction for the first eight years after her separation from service, then worked as a computer operator, and then as a travel agent until approximately two years prior to the examination, when she stopped working due to her heart condition. She complained of feeling nauseous daily, but denied vomiting, hematemesis, and melena. Prevacid relieved most of her reflux, but she discontinued that medication approximately one year earlier due to finances. She noted a worsening of reflux symptoms without Prevacid. She reported diarrhea approximately six times daily. Although she denied weight loss and definite abdominal pain, she stated that she constantly had a "raw" feeling in her stomach. Examination revealed that the appellant was in no acute distress, and had no respiratory difficulty at rest. There was no neck vein distention. The thyroid was slightly palpable, but symmetrical and nontender. Abdomen examination revealed tenderness on the right lower quadrant, but with no rebound or guarding. There was no palpable liver edge. Bowel sounds were active, and no masses were palpable. A GI series showed that the esophagus filled well, and no strictures were identified. A sliding hiatal hernia was noted at the gastroesophageal junction. No significant reflux disease was identified, and there were no definite ulcer deformities. There was no evidence of gastric outlet obstruction. The diagnosis was "history of exposure to chloroacetophenone (teargas), remote with no residuals," and coronary artery disease, status post CABG, NYHA II with ejection fraction of 40 percent. The examiner stated: From [the appellant's] story she was exposed to teargas at such a short time following which she was attended to by her comrades immediately. She has [a] paucity of medical problems since that period until 2002 when she started to require frequent medical care for her heart as well as her stomach condition. The [appellant] also was documented to have an active duodenal ulcer which responded readily to treatment in 1977 prior to her enlistment. It is felt that the hiatal hernia found on X-ray studies with no reflux is not related to her injury from teargas or from her active military service. Although the VA examiner reports that he reviewed the appellant's claims file, he did not include any specific discussion of Dr. M's medical opinions. Moreover, the VA examiner failed to address the appellant's diagnoses of reflux, gastritis and esophagitis. A September 2007 clinic note from Johns Hopkins Medicine notes that the appellant was exposed to tear gas during her military service. The author of the note opined, "all her claims throat, gastritis, neuritis, all organs is most likely to be from [t]his tear gas exposure and will persist[.]" There is no indication that this opinion was rendered following a review of all pertinent records, to include service records and the December 2004 VA examination report. Furthermore, while it refers to on-line references, the specific supporting references are not cited. Notably, this evidence, received by the Board in January 2008, has not been reviewed by the RO, and RO consideration of the additional evidence was not waived. Accordingly, the RO must be given the opportunity to review this evidence in the first instance. See 38 C.F.R. § 20.1304(c) (2007).) A medical opinion is needed to reconcile (with a detailed explanation of the rationale) the conflicting opinions as to whether the appellant's a gastrointestinal disorder, esophagitis, and a throat disorder are causally related to her service, to include exposure to teargas therein. The consulting physician should specifically explain the rationale for any opinion that conflicts with those provided by Dr. M. in 2003, on VA examination in December 2004 or/and in the September 2007 Johns Hopkins Medicine clinic note. Finally, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Inasmuch as the case is being remanded anyway, the Board believes is appropriate to also direct that action be taken to remedy any inadequacy of notice under the holding in Dingess. Consequently, the case is REMANDED to the RO for the following: 1. With respect to the claim of service connection for a gastrointestinal disorder, esophagitis, and a throat disorder, claimed as due to toxic gas exposure, the RO should provide the appellant notice regarding the rating of such disability and effective dates of awards in accordance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). She should have opportunity to respond. 2. The RO should arrange for the appellant to be examined by a physician with appropriate expertise to determine the presence and likely etiology of any current gastrointestinal disorder, esophagitis and throat disorder. The appellant should be properly notified of the examination and of the consequences of her failure to appear. Her claims file must be reviewed by the examiner in conjunction with the examination, and any indicated studies or tests should be accomplished. All clinical findings should be reported in detail. For each gastrointestinal disorder, esophagitis and throat disorder diagnosed, the examiner should provide an opinion, based upon review of the appellant's pertinent medical history and with consideration of sound medical principles, as to whether it is at least as likely as not (a 50% or better probability) that such disability was incurred or aggravated as a result of the appellant's military service, specifically to include as due to toxic gas/teargas exposure therein. The examiner should explain the rationale for all opinions expressed and must reconcile all opinions with those provided by Dr. M. in 2003, on VA examination in December 2004 or/and in the September 2007 Johns Hopkins Medicine clinic note. 3. The RO should then readjudicate the claim seeking service connection for a gastrointestinal disorder, esophagitis and a throat disorder. If it remains denied, the RO should issue an appropriate supplemental statement of the case, and the appellant must have opportunity to respond. Thereafter, the case should be returned to the Board. The appellant has the right to submit additional evidence and argument on the matter that the Board has remanded. See 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 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 Supp. 2007). _________________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2007).