Citation Nr: 1320047 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 09-48 155 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for a stomach condition, characterized as hemorrhagic gastritis. 2. Entitlement to service connection for a lung condition, characterized as characterized as spontaneous pneumothorax. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran served on active duty from June 1976 to July 1980. This matter comes to the Board of Veterans' Appeals (Board) from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The Board notes that in the July 2009 rating decision, the RO treated the claims on appeal as applications to reopen, which usually requires the submission of new and material evidence. Since then, additional service treatment records pertinent to the Veteran's claim were received by VA in May 2010. The RO has reopened the claims and considered them on the merits. In this regard, new and material evidence pursuant to 38 C.F.R. § 3.156(a) is not required for reconsideration, so that the Board may adjudicate the Veteran's current claims for service connection, as an original, rather than as a reopened, claims. 38 C.F.R. § 3.156(c) (2012). A Travel Board hearing was scheduled for April 6, 2011, and the Veteran failed to appear. The Veteran has not filed a motion for a new hearing. Accordingly, the case will be processed as though the request for a hearing has been withdrawn. See 38 C.F.R. § 20.704(d) (2012). The issue of entitlement to service connection for residual scarring from left spontaneous pneumothorax has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran claims that he incurred stomach and lung conditions in service. In furtherance of substantiating his claims, the Veteran was afforded a VA examination in July 2010. With respect to the claimed stomach condition, the examiner noted that the Veteran had struggled with severe gastroesophageal reflux disease (GERD) and HH (hiatal hernia) problems since separating from service and that these conditions had gotten progressively worse. He also noted that the Veteran had a history of Nissen Fundoplication for GERD and a hiatal hernia in February 2009. In terms of service attribution, the examiner rendered a negative etiological opinion, noting that although the Veteran was noted to have a hiatal hernia in service, the service records available for endoscopy results did not show hemorrhagic gastritis, although he did note that they documented an episode of hematemisis. He further opined that hiatal hernias did not often cause reflux and that it had recently been determined that the Veteran had severe, recalcitrant reflux not responding to therapy and therefore the Veteran had a successful Nissan Fundoplication procedure. He further related that he "would say that the progression of his hiatal hernia/reflux condition is related to the episode of severe symptoms experienced in military service, but only chronologically, and treatment of the gastritis was appropriate" and that he "mean[t] to say, that the treatment during military service was not the reason for his HH/reflux being so recalcitrant and difficult to treat." With respect to the claimed lung condition, the examiner noted the in-service left spontaneous pneumothorax and assessed chronic obstructive pulmonary disorder (COPD). He concluded that COPD was less likely than not caused by or a result of the documented in-service spontaneous pneumothorax, reasoning that there was no medical evidence that COPD was brought on by one or repeated pneumothorax. He also noted that, on the contrary, COPD was the cause of spontaneous pneumothorax in 70 percent of cases. Notably, the examiner stated that he could not locate records related to the Veteran's reported 1981 left pneumothorax. In August 2010, the examiner entered addenda to his etiological opinions. In regard to "hiatal hernia with esophagitis" the examiner related that the condition was more likely than not related to service "due to onset of the condition during active duty time." He also related that gastritis was less likely than not related to service "due to no diagnosis in military service and the reflux does not cause gastritis." With respect to the lung condition, i.e., spontaneous pneumothorax, the examiner noted that the condition resolved without any residuals, except 2 scars, both measuring 1 x .05 cm., each slightly raised, non-tender and with normal color. He explained further that COPD was due to long term tobacco use and that pneumothorax did not contribute to the onset of PTSD. In September 2010, the examiner entered another addendum to his opinion regarding the hiatal hernia. In this addendum, he noted that the claims file was extensively reviewed and noted that the service treatment records showed no treatment for a hiatal hernia. Accordingly, he reversed his opinion and concluded that the hiatal hernia was less likely than not related to service. Once VA provides an examination, it must be adequate or VA must notify the Veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An examination is adequate if it "takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one." Barr, 21 Vet. App. at 311 (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). Moreover, an examination must be based upon consideration of the Veteran's prior medical history and examinations. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The Secretary has an affirmative duty to gather the evidence necessary to render an informed decision on a claim. Douglas v. Shinseki, 23 Vet. App. 19 (2009). Pursuant to 38 C.F.R. § 4.2 (2012), it is incumbent upon the rating board to return an examination report as inadequate if it does not contain sufficient detail. The examiner's opinions are insufficient to decide the claims as they are not based upon consideration of the Veteran's prior medical history. With respect to the claim for a stomach condition, characterized as hemorrhagic gastritis, the examiner opined that this condition was not incurred in service as the condition was not assessed in service. However, the Board's review of the record discloses a history of gastritis, apparently alcohol related, in approximately 1979 in service. Moreover, the examiner did not adequately address the Veteran's reported history of stomach problems in and since service. Similarly, with respect to the claimed lung condition, characterized as spontaneous pneumothorax, the examiner noted that he could not locate the records of the Veteran's reported post-service 1981 spontaneous pneumothorax. Notably, there are (and were) of record private treatment records related to a June 1981 left spontaneous pneumothorax, apparently resolved at this time, as well as minimal areas of atelectatic changes at the left lung base. See June 1981 records from Klefstad Clinic. Because the examiner's opinions are based upon an incomplete history, including a lay history with respect to the claimed stomach condition, they are inadequate. Barr, supra. Accordingly, the Board concludes that the Veteran should be afforded new VA examinations. 38 C.F.R. § 4.2. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an appropriate medical professional for the purpose of ascertaining the presence, nature and likely etiology of any stomach/gastrointestinal condition(s). The claims folder should be made available to the medical professional providing the opinion for review in conjunction with rendering the opinion and the examination report should note that the claims file was reviewed. The examiner should obtain a complete, pertinent history from the Veteran. Based upon the examination and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that stomach/gastrointestinal condition(s) is/are attributable to service. Review of the entire file is required; however, attention is invited to the VA examination opinions in July, August, and September 2010; and the service treatment records reflecting gastritis in 1979. In rendering any requested opinion, the examiner must specifically acknowledge and discuss the competent and credible lay evidence reported by the Veteran. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. Any and all opinions must be accompanied by a discussion of the underlying reasons. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 2. Schedule the Veteran for a VA examination by an appropriate medical professional for the purpose of ascertaining the presence, nature and likely etiology of any lung condition(s). The claims folder should be made available to the medical professional providing the opinion for review in conjunction with rendering the opinion and the examination report should note that the claims file was reviewed. The examiner should obtain a complete, pertinent history from the Veteran. Based upon the examination and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any lung condition(s) is/are attributable to service. Review of the entire file is required; however, attention is invited to the VA examination opinions in July, August, and September 2010; and June 1981 treatment at the Kleftad Clinic. In rendering any requested opinion, the examiner must specifically acknowledge and discuss the competent and credible lay evidence reported by the Veteran. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. Any and all opinions must be accompanied by a discussion of the underlying reasons. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 3. After the development requested above has been completed to the extent possible, review the record and readjudicate the Veteran's claims. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto before this case is returned to the Board. The appellant 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 Supp. 2012). _________________________________________________ BETHANY L. BUCK 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) (2012).