Citation Nr: 1329960 Decision Date: 09/18/13 Archive Date: 09/25/13 DOCKET NO. 08-29 676 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a stomach disability, to include as secondary to service-connected bipolar disorder and generalized anxiety disorder. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his fiancée ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1964 to September 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2008 decision by the RO that, in pertinent part, denied service connection for psychiatric disability and a disability of the stomach. The Board remanded the case for additional development in February 2011 and July 2012. In March 2012, while the case was in remand status, the Appeals Management Center (AMC) in Washington, DC, granted service connection for bipolar disorder and generalized anxiety disorder. The prior denial of the claim for service connection for a stomach disability was confirmed and continued, and the case was returned to the Board. Inasmuch as the Veteran appears to be asserting that there is a relationship between his claimed stomach disorder and psychiatric disability, and service connection for psychiatric disability has now been established, the Board has recharacterized the claim for service connection for a stomach disorder to include the theory of secondary service connection, as set forth above, on the title page. A review of the Virtual VA paperless claims processing system revealed no further records pertinent to the present appeal. 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 Although further delay is regrettable, after a review of the record, the Board observes that further development is still required prior to adjudicating the Veteran's claim for a stomach disability. In particular, 1) the AMC should review the VA outpatient treatment records from the VA Medical Center Montrose that were received after transferring the claim back to the Board and 2) the Veteran should be provided with a new VA examination. The Veteran has claimed that his stomach disability, manifested by peptic ulcer disease (PUD) and gastro esophageal reflux disease (GERD), is related to military service and, in particular, caused by his service-connected bipolar disorder and generalized anxiety disorder. First, the AMC, in accordance with the July 2012 remand, attempted to obtain the Veteran's treatment records relating to a hospitalization from the VA Medical Center Montrose. At the time of the June 2013 supplemental statement of the case (SSOC), the AMC had determined that there were no records available during the time period of May 1990 to June 1990, during which the Veteran was hospitalized at the VA Medical Center Montrose for alcohol abuse. However, after issuing the SSOC and returning the case to the Board in July 2013, the AMC finally received the treatment records from the VA Medical Center Montrose, dated May 1990 to June 1990. There is no indication that these records had been reviewed by the AMC and there is no waiver of consideration from the Veteran associated with the claims file. That additional evidence should be reviewed on remand. 38 C.F.R. § 20.1304 (2012). Second, the Veteran should be afforded a new VA examination. Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An opinion is considered adequate when it is based on consideration of an appellant's prior medical history and examinations and describes the disability in sufficient detail so that the Board's evaluation of the claimed disability is a fully informed one. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The United States Court of Appeals for Veterans Claims has instructed that, in order for a medical opinion to be given weight, it must be: (1) based upon sufficient facts or data; (2) be the product of reliable principles and methods; and (3) be the result of principles and methods reliably applied to the facts. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008). In the absence of a sufficiently supported medical opinion, VA fails to meet its duty to assist obligations and a remand is necessary to cure this defect. See 38 C.F.R. § 3.159(c)(4) (2012). Here, the Veteran was provided with an esophageal condition VA examination in April 2012. At this examination, it had been shown that the Veteran was diagnosed with an esophageal stricture in 2010. The condition was considered mild and had accompanying symptoms of sleep disturbance and weight loss. Prior imaging results showed that the Veteran had also been diagnosed with a hiatal hernia in 1992, mild acute and chronic esophagitis in 2008, and an esophageal stricture in 2012. Upon reviewing the Veteran's claims file, the examiner opined that the Veteran's stomach disability was less likely than not related to military service. In support, the examiner provided that the Veteran denied seeking any medical attention for difficulty swallowing and the Veteran's 1967 discharge physical did not mention any esophageal or stomach problems. Furthermore, service treatment records did not show any treatment or complaints of esophageal or stomach problems. The Veteran was administered an additional intestinal VA examination in April 2013. At this examination, the examiner noted that the Veteran had been diagnosed with GERD and PUD in 2007. The examiner considered the Veteran's statements that he had developed these conditions as a result of his service-connected bipolar condition, particularly that his gastrointestinal symptoms in service would cause him to barf. Upon reviewing the claims file, the examiner opined that it was less likely than not that the Veteran's stomach disability was proximately due to or the result of his service-connected bipolar disorder and anxiety disorder. In support, the examiner provided that there is no medical literature, such as from the Mayo Clinic, that supports a causal relationship between bipolar disorder and PUD. It was noted, however, that the Veteran had a chronicity of gastrointestinal disturbances as shown in his service treatment records and medical records post-service. In particular, the examiner found that these records showed that the Veteran's gastrointestinal problems were caused by excessive alcohol abuse during and after service. In June 2013, the AMC obtained an opinion clarification for the April 2013 VA examination, as the examiner had related the Veteran's stomach disability to his alcohol abuse and prior treatment records, such as a VA treatment record from September 2009, indicated a possibility that such abuse was a part of the Veteran's service-connected condition, in that the Veteran had coped with his psychiatric issues by heavy drinking and that he had a history of alcohol abuse. The examiner in the June 2013 clarification offered the opinions that the Veteran's GERD and PUD were less likely than not incurred in or caused by the claimed in-service injury, event, or illness; the Veteran's GERD and PUD were less likely than not proximately due to or the result of the Veteran's service-connected bipolar disorder and anxiety disorder; and the Veteran's GERD and PUD were less likely than not proximately due to or the result of the Veteran's history of alcohol use or abuse. In support, the examiner provided that there were no service personnel or treatment records that discussed alcohol use or abuse; there were no complaints or evaluations related to stomach pain or esophageal reflux while on active duty; no scientifically based literature linking bipolar disorder or generalized anxiety disorder and GERD or PUD; no scientifically based literature linking bipolar disorder or generalized anxiety disorder and alcohol use or abuse; and no scientifically based literature linking alcohol use or abuse and GERD. In regard to the issue of alcohol use or abuse and GERD, the examiner stated that this condition was merely the loss of a protective factor that was affected by many factors, but not specifically alcohol. He further stated that, according to Rakel: Textbook of Family Medicine, 8th ed., alcohol consumption is a less common cause of PUD. Last, the examiner found that the Veteran's self-reporting of alcohol use due to stressors from the service were inconsistent, in that he told some physicians about it and did not bring it up with others. The Board finds that the VA examinations of record, to include the 2013 clarification opinion, are inadequate to render a decision for the issue on appeal. While the April 2012 VA examination had been previously found to be inadequate by the Board in the July 2012 remand for failure to discuss the Veteran's claimed theory of secondary service connection to his service-connected bipolar disorder and anxiety disorder, the April 2012 VA examination is also found to be inadequate for not providing a full discussion of that theory as it relates to the Veteran's alcohol abuse and its possible connection to his service-connected bipolar disorder and anxiety disorder. As was pointed out in the 2013 clarification opinion, there were VA outpatient treatment records that were available to the April 2013 examiner that would have raised the issue of the relationship of the Veteran's stomach disability to his service-connected bipolar disorder and anxiety disorder by way of a possibly related alcohol abuse. Because the April 2013 examiner failed to address this issue, the opinion is not found to be based upon sufficient facts or data. Although the June 2013 clarification opinion did address the issue of the relationship of the Veteran's stomach disability to his service-connected bipolar disorder and anxiety disorder by way of a possibly related alcohol abuse, it too is found to be inadequate. First, the examiner stated that there was no scientifically based literature linking bipolar disorder or anxiety disorder with alcohol abuse. However, upon conducting a simple internet search, one finds that there are many articles, such as from the National Institute of Alcohol Abuse and Alcoholism and the Mayo Clinic to name the first two entries that appeared, suggesting that there may be a possible link. Further, the Veteran himself has repeatedly reported that his psychiatric issues led him to drink more. Merely stating that there is no evidence supporting such a connection rather than providing a well-reasoned analysis, to include consideration of the Veteran's lay statements, is not a sufficient substitute. See Nieves- Rodriguez, 22 Vet. App. at 295. Second, the examiner stated that, in accordance with supporting literature, alcohol consumption is a less common cause of PUD. However, this statement does not absolutely preclude alcohol consumption from being a cause. Therefore, the examiner should have discussed why in the particular case of the Veteran, alcohol consumption could be totally ruled out and identified the facts that support such a conclusion. Again, a well-reasoned analysis must be provided. Id. Third, the examiner stated that the Veteran's subjective reporting at medical examinations regarding his alcohol consumption was inconsistent. However, there was no rationale provided as to why this was relevant to impeaching the Veteran's credibility about his alcohol abuse, as it is possible that the Veteran may not have been aware of the pertinence of this information at every medical appointment he attended or possible embarrassed to bring it up. Had the Veteran provided vastly differing accounts regarding his past alcohol abuse, perhaps an assessment of his credibility would have been in order. However, based upon mere fluctuations in the reporting of alcohol abuse in general, such issue is not relevant. Last, the examiner did not have the benefit of reviewing the Veteran's VA outpatient treatment records from the VA Medical Center Montrose, in which it detailed his May 1990 to June 1990 hospitalization for alcohol abuse. Those records may have been highly relevant to an analysis of the existence of an alcohol problem in general or its possible relationship to his service-connected psychiatric disorders. Accordingly, the Board finds that the Veteran should be provided with a new VA psychiatric examination in order to evaluate the possible relationship of his service-connected bipolar disorder and/or anxiety disorder to his history of alcohol use and abuse, as the April 2013 VA examiner has provided a positive nexus opinion between that latter disorder and the claimed stomach disability. All opinions must be supported with a well-reasoned analysis of the relevant facts and supporting literature. Additionally, as this case must be remanded for the foregoing reasons, any recent treatment records, including VA records, should also be obtained. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disability on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. Appropriate efforts must be made to obtain all available VA treatment records. All attempts to procure records should be documented in the file. If the AMC cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. After any additional evidence has been associated with the claims file, the Veteran should be afforded an appropriate psychiatric examination in order to determine the relationship of his alcohol use and abuse and his service-connected bipolar disorder and/or anxiety disorder. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the examiner for review. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. The examiner must consider the Veteran's lay testimony in rendering a decision. Further, the examiner should review the VA treatment records from the VA Medical Center Montrose, dated May 1990 to June 1990, detailing the Veteran's hospitalization for alcohol abuse. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any history of alcohol use or abuse by the Veteran is proximately due to or the result of the Veteran's service-connected bipolar disorder and/or anxiety disorder. In particular, the examiner should discuss the Veteran's lay statements that he consumed alcohol as a result of his psychiatric conditions during and after military service as well a VA outpatient treatment records that reflect treatment and diagnoses of alcohol abuse. The examiner should provide a rationale for all opinions. 3. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AMC must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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). _________________________________________________ WAYNE M. BRAEUER 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).