Citation Nr: 1333433 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 10-03 236 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for type II diabetes mellitus. 2. Entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities. 3. Entitlement to service connection for prostate cancer. 4. Entitlement to service connection for hiatal hernia and/or gastroesophageal reflux disease (GERD). 5. Entitlement to service connection for residuals of a back injury. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The appellant and his spouse ATTORNEY FOR THE BOARD K. Conner, Counsel INTRODUCTION The appellant served on active duty from January 1968 to January 1988. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In September 2013, the appellant testified at a Board hearing before the undersigned Veterans Law Judge sitting in San Antonio, Texas. A transcript of the hearing has been associated with the record on appeal. For the reasons set forth below, a remand of this matter is necessary. 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 Diabetes mellitus, prostate cancer, and peripheral neuropathy of the upper and lower extremities The appellant contends that his diabetes mellitus and prostate cancer are the result of his exposure to Agent Orange during a 90-day temporary tour of duty in Vietnam from February 1970 to May 1970. The appellant also claims that he currently has peripheral neuropathy of the upper and lower extremities secondary to his diabetes mellitus. As a preliminary matter, the Board notes that the available service treatment records are entirely negative for any complaints or findings of diabetes mellitus or prostate cancer. The post-service medical evidence is similarly negative for complaints or findings of either condition in the first post-service year or for several years after separation. Moreover, there is no indication in the evidence of record that any medical professional has related the appellant's current diabetes mellitus or prostate cancer to his active service or any incident therein. The appellant does not contend otherwise. Rather, he has contended that he developed diabetes mellitus and prostate cancer as a result of Agent Orange exposure. VA regulations provide that, if a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain enumerated diseases shall be service connected if the requirements of 38 U.S.C.A. § 1116, 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e) (2013). The enumerated diseases which are deemed to be associated with herbicide exposure do include diabetes mellitus and prostate cancer. See 38 C.F.R. § 3.309(e) (2013). In this case, however, the record currently available to the Board contains no service department evidence establishing that the appellant was present on the land mass of Vietnam or in its inland waterways during the Vietnam era. Absent such evidence, it cannot be presumed that the appellant was exposed to an herbicide agent during service and service connection for diabetes mellitus or prostate cancer on a presumptive basis under 38 C.F.R. §§ 3.307 and 3.309 would not be warranted. See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). In April 2008, in response to an inquiry from the RO, the service department indicated that there are no records of the appellant having served in Vietnam. At his September 2013 Board hearing, however, the appellant testified that, while he was stationed at Hickam Air Force Base, Hawaii, he completed a 90-day temporary tour of duty in Vietnam from February 1970 to May 1970. Given the applicable legal criteria pertaining to claims based on herbicide exposure, the Board finds that additional evidentiary development is necessary, to include obtaining the appellant's entire service personnel file, which may contain information regarding his reported Vietnam service in 1970. The RO has not yet made an attempt to obtain such records. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c)(2) (2013). The Board also notes that there appear to be outstanding post-service clinical records pertaining to these claims. The appellant has submitted some post-service clinical records from the clinic at Kelly Air Force Base as well as the Brooke Army Medical Center, but it appears that these records are incomplete. For example, at his September 2013 Board hearing, the appellant testified that he had been diagnosed as having diabetes mellitus in 1990 at Brooke Army Medical Center. Records corresponding to this diagnosis, however, are not included in the records he submitted. Moreover, at his September 2013 Board hearing, the appellant also testified that he now receives his medical care from VA and that he had an upcoming appointment at the Audie Murphy VA Medical Center, possibly related to his peripheral neuropathy. A review of the record indicates that the only VA clinical records currently associated with the claims file correspond to the period from October 2006 to September 2009 only. These records are entirely negative for notations of peripheral neuropathy, as is the remaining record on appeal. VA's statutory duty to assist includes making as many requests as are necessary to obtain relevant records in the custody of a Federal department or agency, including a VA medical facility and the service department. VA may only end its efforts to obtain such records if it is concluded that the records sought do not exist or that further attempts to obtain them would be futile. 38 C.F.R. § 3.159(c)(2). Given the discussion above, additional evidentiary development is necessary prior to further appellate consideration of these issues. Hiatal hernia/GERD The appellant seeks service connection for a gastrointestinal disability, including hiatal hernia and/or GERD. He contends that he developed a chronic gastrointestinal disability during active duty and that it has persisted since that time. The available service treatment records show that the appellant was seen on multiple occasions in connection with his complaints of heartburn, indigestion, and bloating. In March 1987, he was diagnosed as having a hiatal hernia, sliding type. He was also prescribed Zantac for GERD in June 1987. The post-service record on appeal includes clinical records from a military medical facility showing that the appellant was seen with complaints of a long history of gastritis in August 1990. He reported that he used TUMS with good relief of heartburn. The assessment was hiatal hernia and reflux. In September 1994, he again complained of heartburn and was prescribed Zantac. In March 1996, he was noted to have gastritis and GERD. VA clinical records show that the appellant was assessed as having GERD in October 2006. In connection with this claim, the appellant was afforded a fee basis medical examination in May 2008. The examiner noted that the appellant had complained of nonspecific abdominal tenderness to palpation during the examination, but an upper GI series conducted in connection with the examination was within normal limits. The examiner indicated that no diagnosis was warranted because the upper GI series was negative for a GERD condition. Given the nature of the appellant's contentions and the evidence of record, however, the Board finds that the May 2008 medical opinion is incomplete. Although the examiner concluded that a diagnosis was GERD was not warranted, he did not address whether any other gastrointestinal disability was present, including a hiatal hernia. Nor did he reconcile his opinion with the other evidence of record, including VA clinical records showing an assessment of GERD in October 2006. Under these circumstances, a remand is necessary. Barr v. Nicholson, 21 Vet. App. 303, 312 (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). Residuals of a back injury The appellant also seeks service connection for residuals of a back injury. He contends that he was involved in an automobile accident in 1974 during which he sustained injury to his back. He recalls being hospitalized for at least two weeks following the accident at the Wilford Hall Medical Center at Lackland Air Force Base. Following his discharge from the hospital, the appellant recalls that he was put on light duty for a period of six months and received regular physical therapy for his back. Unfortunately, the appellant's service treatment records appear to be incomplete. Other than a copy of his November 1967 enlistment examination report, the service treatment records dated prior to 1981 appear to be largely missing, including records corresponding to the reported period of hospitalization in 1974 following the automobile accident. The Board also notes that the record does not contain a copy of the appellant's military retirement medical examination. Indeed, the appellant's representative has requested a remand of this matter for the purposes of seeking to obtain complete service treatment records. In addition, given the evidence currently of record, the Board finds that a VA medical examination is necessary in connection with this claim. 38 C.F.R. § 3.159(c)(4) (2013); McLendon v. Nicholson, 20 Vet. App. 79 (2006) (holding that an examination is necessary when the record indicates that a current disability may be associated with service. This is a "low threshold," one which may be satisfied by evidence of continuity of symptomatology such as pain). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should contact the National Personnel Records Center (NPRC) or other appropriate repository of records and request the appellant's complete service personnel and treatment records, to include any records corresponding to a temporary tour of duty in Vietnam from February 1970 to May 1970, and any records corresponding to a period of hospitalization at the Wilford Hall Medical Center in 1974. The RO/AMC should only end its efforts to obtain these records if it is concluded that the records sought do not exist or that further attempts to obtain them would be futile. In the event the RO/AMC is unable to obtain these records, the appellant must be notified in accordance with 38 C.F.R. § 3.159(e). 2. The RO/AMC should contact the Wilford Hall Medical Center at Lackland Air Force Base or other appropriate repository of records and request all clinical records corresponding to a two week period of hospitalization the appellant reports spending at that facility in 1970. 3. The RO/AMC should review the record and ensure that the record on appeal contains complete clinical records from the South Texas VA Healthcare System, including the Audie Murphy VAMC, for the period from 1988 to the present. The RO/AMC should only end its efforts to obtain these records if it is concluded that the records sought do not exist or that further attempts to obtain them would be futile. In the event the RO/AMC is unable to obtain these records, the appellant must be notified in accordance with 38 C.F.R. § 3.159(e). 4. The RO/AMC should contact the medical clinic at Kelly Air Force Base and the Brooke Army Medical Center and request complete clinical records pertaining to the appellant for the period from 1988 to the present. The RO/AMC should only end its efforts to obtain these records if it is concluded that the records sought do not exist or that further attempts to obtain them would be futile. In the event the RO/AMC is unable to obtain these records, the appellant must be notified in accordance with 38 C.F.R. § 3.159(e). 5. Upon completion of the foregoing development, the appellant should be afforded a VA medical examination for the purposes of determining the nature and etiology of any current gastrointestinal disability, to include GERD and hiatal hernia. The claims folder and access to any additional records in the appellant's Virtual VA file must be made available to the examiner for review in connection with the examination. After examining the appellant and reviewing the record, the examiner should delineate all gastrointestinal disabilities identified on examination. He or she must opine whether it is at least as likely as not that any current gastrointestinal disability identified on examination is at least as likely as not causally related to the appellant's active service or any incident therein, including in-service treatment for GERD and hiatal hernia. The examiner's opinion should include consideration of the entire record, including post-service clinical records showing assessments of GERD, gastritis, and reflux. A complete rationale must be given for any opinion offered. 6. The appellant should also be afforded a VA medical examination for the purposes of determining the nature and etiology of any current back disability. The claims folder and access to any additional records in the appellant's Virtual VA file must be made available to the examiner for review in connection with the examination. After examining the appellant and reviewing the record, the examiner should delineate all back disabilities identified on examination. He or she must opine whether it is at least as likely as not that any current back disability identified on examination is at least as likely as not causally related to the appellant's active service or any incident therein, including the reported automobile accident in 1974. The examiner's opinion should include consideration of the entire record, including post-service clinical records showing a history of low back pain since an accident in the 1990's. See e.g. VA clinical record of February 1, 2007. A complete rationale must be given for any opinion offered. 7. After the development requested has been completed, and after conducting any additional development deemed necessary based on the additional evidence received as a result of his REMAND, the AMC/RO should readjudicate the claims, considering all the evidence of record. If the benefits sought remain denied, the RO/AMC must provide the appellant and his representative with a supplemental statement of the case, and afford them an appropriate period of time for response. Thereafter, if indicated, the case should be returned to the Board for appellate disposition. 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). _________________________________________________ JESSICA J. WILLS 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) (2013).