Citation Nr: 1322984 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 10-20 947 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Evaluation of duodenal ulcer with gastroesophageal reflux disease, currently rated as 10 percent disabling. 2. Entitlement to service connection for a heart disability. 3. Entitlement to service connection for hypertension. 4. Entitlement to service connection for pes planus (claimed as bilateral foot problems). 5. Entitlement to service connection for tinnitus. 6. Entitlement to service connection for a bilateral hearing loss disability. REPRESENTATION Veteran represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD M. Donohue, Counsel INTRODUCTION The Veteran served on active duty from July 1960 to January 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board denied the Veteran's claim of entitlement to service connection for a heart disability in a June 2011 decision. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (the Court). In a Memorandum Decision dated January 9, 2013, the Court vacated the Board's decision and remanded the case. In the above-mentioned June 2011 decision, the Board also remanded the issues of entitlement to service connection for pes planus, hypertension, bilateral hearing loss and tinnitus. The issue of entitlement to an evaluation in excess of 10 percent for a duodenal ulcer with gastroesophageal reflux was also remanded for additional development. The case is once again before the Board. 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 After having carefully considered the matter, and for reasons expressed immediately below, the Board believes that this case must be remanded for further evidentiary development. In the June 2011 remand, the Board observed that the Veteran has been afforded a VA gastroesophageal reflux disease examination in March 2009. Upon review, however, the Board found that the examination was not suitable for rating purposes as it did not discuss the duration and recurrence of the Veteran's symptoms. As a result, the claim was remanded in order to schedule the Veteran for an additional examination. The record reflects that the Veteran was afforded an additional VA examination in July 2011. While the examiner reviewed the Veteran's claims folder and conducted a physical examination, he did not comment on whether the Veteran continues to experience an ulcer and, if so, the frequency at which this ulcer occurs. As a result, another examination is necessary to decide this claim. With respect to the Veteran's heart disability claim, as noted in the Introduction, the Board denied service connection for this issue in June 2011. In rendering this decision, the Board found that there was no evidence of a heart disability and that the Veteran had not reported any symptoms consistent with a heart disability. In its decision, the Court observed that the Board did not discuss a June 2006 VA treatment record which documented that the Veteran sought treatment for left arm pain, shortness of breath and fatigue which had lasted for several days. It was also noted that the Board did not discuss the results of a 2008 electrocardiogram which revealed that the Veteran may have developed left ventricle hypertrophy and a first degree atrioventricular block - a condition which was first identified during his service. The Court then noted that a remand was necessary in order for the Board to evaluate this evidence. In short, the service treatment records document that he was diagnosed with a "slight tachycardia" and 1st degree atrioventricular block while on active duty. He has recently sought treatment for left arm pain, shortness of breath and has been diagnosed with 1st degree atrioventricular block. Under these circumstances, the Board believes that a nexus opinion must be obtained. See McLendon v. Nicholson, 20 Vet.App. 79 (2006); Charles v. Principi, 16 Vet.App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2012) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim). In the January 2013 Memorandum Decision, the Court observed that there was "no evidence clearly indicating that VA obtained [the Veteran's VA] medical records for the period between 1979 and 2006 and no evidence that VA made a formal finding that any records for that period were unavailable." See the memorandum decision, page 7. As the record indicated that Veteran had two stress tests during that period, the Court held that "the Board's statement of reasons or bases is inadequate because it did not discuss whether VA's duty to assist requires it to attempt to obtain medical record for the period between 1979 and 2006." Id. Accordingly, on remand, the RO/AMC should attempt to obtain the Veteran's VA treatment records from 1979 to 2006. With respect to the hypertension claim, in June 2011, the Board observed that the Veteran had been diagnosed with hypertension and his service treatment records document that he may have been pre-hypertensive while on active duty. As a result, the claim was remanded in order to obtain medical nexus opinion. The Veteran was afforded a VA examination in July 2011. After reviewing the Veteran's claims file and conducting a physical examination, the VA examiner stated that the Veteran's hypertension was diagnosed after he separated from service and therefore was less likely than not related to his active duty service. While the Veteran's service treatment records do not indicate that he was diagnosed with hypertension during service, service connection may be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. See 38 C.F.R. § 3.303(d) (2012). As currently drafted, the July 2011 VA examiner's opinion provides no rationale as to why the Veteran's hypertension could not develop after his military service. See Bloom v. West, 12 Vet.App. 185 (1999); (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion."); see also Hernandez-Toyens v. West, 11 Vet. App. 379 (1998) (the failure of the health care provider to provide a basis for his/her opinion goes to the weight or credibility of the evidence); See Barr v. Nicholson, 21 Vet.App. 303 (2007); (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.) Therefore, an additional VA medical opinion must be obtained. Regarding the Veteran's claims for service connection for tinnitus and bilateral hearing loss, the record reflects that the Veteran was afforded a VA audiological examination in March 2009. While audiometric testing could not be completed during this examination, the VA examiner noted that the Veteran's service treatment records document normal hearing in the 1960 and 1966 physicals. As a result, she concluded that if hearing loss is present, it is not related to military noise exposure. It was further noted that the exact etiology of tinnitus is not known, but it is frequently associated with hearing loss and noise exposure. The examiner therefore opined that it was less likely than not that the Veteran's tinnitus was related to in-service noise exposure. In its remand, the Board found that another examination is necessary to determine the etiology of the Veteran's hearing loss and tinnitus since the opinion offered by the March 2009 VA examiner lacked sufficient reasons and rationale. Following the Board's remand, the Veteran was afforded an additional VA examination in June 2011. Upon review, however, this examiner simply resubmitted the March 2009 examiner's opinion. As the recently obtained VA medical opinion is a verbatim copy of a prior opinion that was found to be inadequate, a new medical opinion must be obtained. Finally, with regard to the Veteran's claim of entitlement to service connection for pes planus, the record reflects that the Veteran was diagnosed with pes planus during his January 1960 entrance examination. During his separation examination in January 1966, the Veteran again complained of foot trouble. Following a clinical examination and a review of the Veteran's claims file, the July 2011 VA examiner stated that because the Veteran had not sought treatment in service, it was less likely than not that his pes planus had been aggravated by his active duty service. Upon review, the examiner's opinion is inadequate as it lacks sufficient reasons and rationale for his opinion. For instance, the Board notes that the examiner did not address the Veteran's complaints that he experienced pain in his feet every day and that he had to purchase his own arch supports while on active duty. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr, supra. Such is the case here. As a result, the Board finds that new VA examinations and opinions are required prior to adjudication of the Veteran's claims. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should take all indicated action to obtain copies of the Veteran's VA treatment records from dated from 1979 and 2006, and any since 2008. These records should be incorporated into the Veteran's claims file. If no records are available, documentation stating such should be incorporated in the claims file. 2. Then, the RO/AMC should schedule the Veteran for a VA examination to determine the current severity of the service-connected duodenal ulcer with gastroesophageal reflux disease. The claims file should be made available to the examiner for review, and all indicated testing should be performed in this regard. The examiner should elicit from the Veteran and record a complete medical history and identify detailed clinical findings to permit the evaluation of the service-connected duodenal ulcer with gastroesophageal reflux disease in terms of all applicable rating criteria. The examiner must specifically describe all symptomatology attributable to the Veteran's duodenal ulcer and gastroesophageal disease, to include the frequency at which the Veteran experiences ulcer symptoms. 3. Then, the RO/AMC should arrange for an appropriate health care provider to review the Veteran's claims file and determine the nature and etiology of his hypertension. 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 lay statements. Then, the examiner should opine as to whether it is at least as likely as not that the Veteran's hypertension is related to his military service. In so doing, he or she should specifically address whether the Veteran was pre-hypertensive during service. If the reviewing health care provider finds that physical examination of the Veteran and/or diagnostic testing is necessary, such should be accomplished. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. Then, the RO/AMC should arrange for an appropriate health care provider to review the Veteran's claims file and determine if the Veteran's preexisting pes planus was aggravated by his active duty service. 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 lay statements. The examiner must provide an opinion whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that any currently present pes planus was aggravated by river. The examiner must provide a rationale for all opinions rendered. If the reviewing health care provider finds that physical examination of the Veteran and/or diagnostic testing is necessary, such should be accomplished. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 5. The Veteran should be afforded a VA examination to determine the nature and etiology of any hearing loss and tinnitus that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, including the Maryland CNC test and a puretone audiometry test. 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 statements. It should be noted that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. The Veteran has contended that he had noise exposure in service. It should be noted that he is competent to attest to factual matters of which he had first-hand knowledge. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should then state an opinion as to the likelihood (likely, unlikely, at least as likely as not) that any current hearing loss and tinnitus are causally or etiologically related to his military service, including noise exposure. He or she should also address whether the Veteran's tinnitus is caused or otherwise related to his hearing loss. In so doing, the examiner should discuss medically known or theoretical causes of hearing loss and tinnitus and describe how hearing loss and tinnitus which results from noise exposure generally present or develop in most cases, as distinguished from how hearing loss or tinnitus develops from other causes, in determining the likelihood that current hearing loss and tinnitus were caused by noise exposure in service as opposed to some other cause. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 6. When the development requested has been completed, the case should be reviewed by the RO/AMC on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further 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). 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. 2012). _________________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).