Citation Nr: 1325478 Decision Date: 08/12/13 Archive Date: 08/16/13 DOCKET NO. 04-11 445 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for a stomach disorder, including due to herbicide exposure. 2. Entitlement to service connection for rheumatoid arthritis, including due to herbicide exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran served on active duty from June 1969 to January 1972, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. 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 Board seeks entitlement to service connection for a stomach disorder and rheumatoid arthritis. He specifically contends that herbicide exposure during his service in the Republic of Vietnam caused his current stomach disorder and rheumatoid arthritis. Governing law provides that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116(f). Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a) (6) (iii). If a Veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6)(iii) (2012) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) (2012) are also satisfied: Chloracne or other acneform disease consistent with chloracne; Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin's disease; hairy cell leukemia and other chronic B-cell leukemias; multiple myeloma; non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma); Parkinson's disease; and ischemic heart disease. 38 C.F.R. § 3.309(e) (2012). Note 3 at the end of § 3.309 defines ischemic heart disease as not including hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke. The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a) (6) (ii) (2012). The record reflects that the Veteran had service in the Republic of Vietnam during the applicable time period. Therefore, exposure to herbicides is established. 38 C.F.R. § 3.307(a) (6) (iii). However, the Veteran's diagnosed gastroesophageal reflux disease (GERD) and rheumatoid arthritis are not on the list of diseases eligible for presumptive service connection under 38 C.F.R. § 3.309(e). Nonetheless, where the evidence does not warrant presumptive service connection, the United States Court of Appeals for the Federal Circuit has determined that an appellant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In its June 2012 remand instructions, the Board directed the RO to schedule the Veteran for a new VA examination to obtain an opinion as to whether it was at least as likely as not (a 50 percent probability or more) that the Veteran's arthritis disorder or a current stomach disorder were caused or aggravated by one or more of the Veteran's service-connected disabilities. Pursuant to the Board's June 2012 remand instructions, the Veteran was afforded a VA examination in which the examiner opined that the Veteran's current diagnoses of rheumatoid arthritis and GERD were not caused by or the result of or aggravated by service or by any of his service-connected disabilities. However, in the Veteran's May 2013 Informal Hearing Presentation, his representative emphasized that the June 2012 VA examination report was inadequate because it failed to specifically address the question of whether the Veteran's GERD and/or rheumatoid arthritis were caused by his in-service herbicide exposure. Indeed, this is especially relevant because the Board reopened the Veteran's claim of entitlement to service connection for a stomach disorder in its June 2012 decision based on the Veteran's submission of several articles in which the authors propounded a nexus between Agent Orange/dioxin exposure and numerous gastrointestinal disorders, including nausea, vomiting, abdominal pain, and gastric ulcers. Although the June 2012 VA examiner generally concluded that the Veteran's GERD and rheumatoid arthritis were not caused by or a result of the his military service on the basis that he did not manifest relevant symptomatology during his period of service, the examiner's opinion did not address the assertion that these disabilities manifested at a later date as a result of in-service herbicide exposure, as claimed by the Veteran and as suggested by the articles submitted by the Veteran. As such, the Board finds that a new VA examination must be conducted specifically address the likelihood that the Veteran's arthritis disorder and/or GERD are related to his in-service exposure to herbicides. See Barr v. Nicholson, 21 Vet. App. 303, 312 (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). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a new VA examination regarding the claims for service connection for rheumatoid arthritis and a stomach disorder. The claims file and a copy of this Remand must be made available to, and reviewed by, the examiner in conjunction with the examination. All indicated tests should be done, and all findings must be reported in detail. The examiner must also record all pertinent medical complaints and symptoms. Following a review of the claims file, to include service and post-service medical records as well as the various articles submitted by the Veteran suggesting a link between his presumed herbicide exposure and the disabilities on appeal, and the examination results, the examiner is requested to offer an opinion as to whether it is at least as likely as not (a 50 percent probability or more) that the Veteran's arthritis disorder and/or GERD were related to the Veteran's military service, to specifically include his presumed exposure to herbicides. A complete rationale for all opinions must be provided, and the examiner is asked to explicitly reference the articles submitted by the Veteran suggesting a nexus between Agent Orange/dioxin exposure and numerous gastrointestinal disorders, including nausea, vomiting, abdominal pain, and gastric ulcers. 2. Notify the Veteran that it is his responsibility to report for the examinations 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 one or more of his claims. 38 C.F.R. §§ 3.158, 3.655 (2012). 3. After completing the above development, and any other development deemed necessary, readjudicate the issues remaining on appeal. If any benefit sought remains denied, provide an additional supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board for appellate review, after the Veteran has had an adequate opportunity to respond. The appellant 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. 2012). _________________________________________________ ROBERT C. SCHARNBERGER 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).