Citation Nr: 0814506 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 05-12 847 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for headaches, to include as due to exposure to Agent Orange. 2. Entitlement to service connection for a stomach condition, to include as due to exposure to Agent Orange. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD David Traskey, Associate Counsel INTRODUCTION The veteran had active service from March 1966 to February 1970. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of August 2003 by the Department of Veterans Affairs (VA) Atlanta, Georgia, Regional Office (RO). The veteran's claims file was subsequently transferred to the St. Petersburg, Florida RO. The Board notes that the veteran was granted service connection for post-traumatic stress disorder (PTSD) in a rating decision dated June 2007. The RO evaluated the veteran's psychiatric disability as 50 percent disabling, effective February 5, 2003. The veteran submitted a timely notice of disagreement in which he requested a higher initial disability evaluation. The RO issued a statement of the case, but the veteran's claims file was sent to the Board before the expiration of the appeal period for this issue. Thus, the issue of entitlement to an initial disability evaluation in excess of 50 percent for PTSD is not currently before the Board. In a statement dated February 2008, the veteran raised the issues of entitlement to service connection for high blood pressure and entitlement to service connection for a heart attack, to include consideration of both conditions as secondary to his service-connected PTSD. The Board refers these issues to the RO for any appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action is required. REMAND The veteran in this case filed service connection claims for headaches and a stomach condition in February 2003. The RO denied these claims in a rating decision dated August 2003. The veteran timely perfected his appeal with respect to both issues. The Board has rephrased both of the issues on appeal to include service connection as due to exposure to Agent Orange. The veteran indicated in his VA Form 21-526, Veteran's Application for Compensation or Pension, that he believed his headaches and stomach condition were possibly caused by exposure to Agent Orange. Since the RO has not addressed this theory of causation, a remand is required for this reason, as well as other reasons discussed below. According to the veteran's DD-214 Form, he had active duty in the United States Marine Corps from March 1966 to February 1970, with one year and 29 days of foreign and/or sea service. The veteran was awarded the National Defense Service Medal, Vietnam Service Medal (3 stars), Vietnam Campaign Medal ("1960" Device), Combat Action Ribbon, Purple Heart, and Presidential Unit Citation. The RO should obtain the dates and location(s) of foreign service on remand. Service medical records (SMRs) associated with the veteran's claims file show that he was afforded a clinical evaluation and physical examination in November 1965 prior to entering service. The clinical evaluation was normal, and no evidence of neurological or gastroenterological problems was noted. The veteran described his health as "good," and provided a medical history in which he specifically denied having frequent or severe headaches, or stomach, liver, or intestinal trouble. The veteran presented to sick call in March 1967 with symptoms of abdominal pain, nausea, and vomiting. The examiner diagnosed the veteran as having acute gastritis and an upper respiratory infection. Similarly, the veteran was treated in April 1967 for an upper respiratory infection after reporting symptoms of headaches and nausea. The veteran sought additional care at sick call in August 1967 after reporting epigastric pain for two years. The examiner noted that the veteran had never been evaluated for an ulcer, but noted that the pain had no relationship to eating. The veteran indicated that he vomited three days prior to the visit. No diagnosis was made at that time. The veteran presented to sick call in December 1967 with a laceration on the top of his forehead. The examiner noted that the veteran was conscious, and applied dressing and bandages. The veteran was afforded a clinical evaluation and physical examination in February 1970 prior to discharge from service. The clinical evaluation was normal, and no evidence of neurological or gastroenterological problems was noted. Headaches The first pertinent post-service treatment note is dated December 1997. The veteran presented to M. Brady, M.D. with right-sided facial pain secondary to sinus congestion. Upon physical examination, Dr. Brady observed tenderness over the right maxillary sinus, and diagnosed the veteran as having sinus congestion with secondary headache. Associated with the veteran's claims file is a private medical opinion dated March 2005 from S. Holcomb, D.M.D. Dr. Holcomb indicated that the veteran had been a patient of his since April 1975. During that time, the veteran underwent extensive restorative dental treatment due to severe abrasion and active bruxism. The veteran also allegedly reported recurrent temporal and occipital headaches. Dr. Holcomb stated that the veteran's bruxism, as well as "Tempro- Mandibular Joint Syndrome," were contributing factors to this condition. VA has a duty to assist veterans to obtain evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A; 38 § C.F.R. § 3.159. This duty to assist includes providing a thorough and contemporaneous medical examination. Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The veteran was not afforded a VA examination in this case. An examination should be scheduled to determine the nature and etiology of any neurological conditions. Stomach Condition The first pertinent post-service treatment note was dated October 1997. The veteran presented to M. Brady, M.D. with recurrent problems related to a hiatal hernia. The veteran indicated that the condition was worse at night when he was lying down. He obtained some relief with Pepcid. In May 2000, the veteran sought care from A. Justice M.D. for the purpose of establishing care. The veteran reported fatigue, snoring, and gastroesophageal reflux. Dr. Justice diagnosed the veteran as having gastroesophageal reflux disease (GERD). In July 2000, the veteran underwent a gastric antrum biopsy at the request of A. Justice, M.D. The biopsy results were interpreted to show chronic gastritis, moderately severe, with numerous helicobacter-like bacteria detected in luminal mucus. A November 2001 private treatment note authored by M. Ahmed, M.D. indicated that the veteran experienced gastric adverse effects following a percutaneous transluminal coronary angioplasty (PTCA). VA has a duty to assist veterans to obtain evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A; 38 § C.F.R. § 3.159. This duty to assist includes providing a thorough and contemporaneous medical examination. See Green, supra. The veteran was not afforded a VA examination in this case. An examination should be scheduled to determine the nature and etiology of any gastroenterological conditions, particularly in light of the veteran's in-service treatment for acute gastritis. The veteran also receives medical care through VA. VA is required to make reasonable efforts to help a veteran obtain records relevant to his claim, whether or not the records are in Federal custody. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2007). In Bell v. Derwinski, 2 Vet. App. 611 (1992), the United States Court of Appeals for Veterans Claims (Court) held that VA has constructive notice of VA- generated documents that could reasonably be expected to be part of the record, and that such documents are thus constructively part of the record before the Secretary and the Board, even where they are not actually before the adjudicating body. Accordingly, the RO should request all VA medical records pertaining to the veteran that are dated from December 13, 2007 to the present. Accordingly, the case is REMANDED for the following action: 1. The RO should contact the appropriate agencies and obtain the dates and location(s) of the foreign service shown on the veteran's DD214. 2. The RO should also contact the appropriate VA medical facilities and attempt to obtain medical treatment records that are dated from December 13, 2007 to the present. The RO should also attempt to obtain any other evidence identified as relevant by the veteran during the course of the remand, provided that the veteran completes the required authorization forms. 3. After the above development is completed, the RO should make arrangements with the appropriate VA medical facility for the veteran to undergo a VA neurological examination. The claims folder and a copy of this remand must be made available to the examiner. Any appropriate evaluations, studies, and testing deemed necessary by the examiner should be conducted at this time, and included in the examination report. The examiner is asked to ascertain the nature and etiology of any and all neurological conditions, to include headaches, and the proper diagnoses thereof. If the examiner determines that the veteran currently has a neurological condition, such as headaches, the examiner is asked to express an opinion as to whether the veteran's condition is at least as likely as not (i.e., 50 percent or greater possibility) related to the veteran's military service. The examiner must provide a complete rationale for any stated opinion. 4. The RO should also make arrangements with the appropriate VA medical facility for the veteran to undergo a gastroenterological examination. The claims folder and a copy of this remand must be made available to the examiner. Any appropriate evaluations, studies, and testing deemed necessary by the examiner should be conducted at this time, and included in the examination report. The examiner is asked to express an opinion as to whether the veteran's gastroenterological condition(s) is at least as likely as not (i.e., 50 percent or greater possibility) related to the veteran's military service. The examiner must provide a complete rationale for any stated opinion. 5. Thereafter, the RO should readjudicate the veteran's claims. If the benefits sought on appeal remain denied, the veteran and his representative should be provided a Supplemental Statement of the Case (SSOC). The SSOC must contain notice of all relevant actions taken on the claims for benefits, to include a summary of the evidence and applicable laws and regulations considered pertinent to the issues currently on appeal. An appropriate period of time should be allowed for response. The veteran has the right to submit additional evidence and argument on the matter or 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 Supp. 2007). _________________________________________________ S.S. TOTH 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).