Citation Nr: 1320439 Decision Date: 06/25/13 Archive Date: 07/05/13 DOCKET NO. 07-04 666 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a respiratory disability. 2. Entitlement to service connection for hiatal hernial. 3. Entitlement to service connection for a lumbar spine disability. 4. Entitlement to service connection for hepatitis C. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active military duty from October 1965 to July 1977. The matter comes before the Board of Veterans' Appeals (Board) on appeal from March and June 2005 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In January 2010, the Veteran and his spouse appeared at the RO and testified at a videoconference hearing conducted by the undersigned sitting in Washington, DC. A transcript of the hearing is of record. In August 2010, the Board remanded the case to the RO for additional development of the appealed claims; the case has now been returned to the Board for further review. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC. REMAND Notice and Development Assistance The Board left the record open for 30 days following the January 2010 hearing, for the Veteran to submit reported records of treatment from private physicians following service. No records were received from the Veteran following the hearing. The Board then in August 2010 remanded the claim for the Veteran to assist with obtaining records from named private treatment sources. In the remand, the Board made obtaining new VA examinations to address the claimed upper gastrointestinal, respiratory, and lumbar spine disabilities conditional upon VA obtaining "any additional records" which "contain any reference to respiratory, upper gastrointestinal, or lumbar spine problems." Such new records were to be obtained with the Veteran's assistance, based on the Veteran's prior assertions, including in hearing testimony, of his having received treatment prior to 2002 for the claimed disabilities by named private physicians whom the Veteran asserted had afforded him such past treatment. Private treatment records prior to 2002 from Dr. Cary were not yet associated with the claims file, and neither were any records from Dr. Winston and Dr. Waite. Unfortunately, the Veteran failed to reply to an Appeals Management Center (AMC) development letter issued in August 2010. That development letter, in pertinent part, informed as follows: We need additional evidence from you. Please put your VA file number on the first page of every document you send us. Send any treatment records pertinent to your claimed condition(s), especially those from Dr. Cary prior to 2002, and all medical treatment records from Drs. Winston and Whaite [sic]. This includes reports or statements from doctors, hospitals, laboratories, medical facilities, mental health clinics, x-rays, physical therapy records, surgical reports, etc. These should include the dates of treatment, findings, and diagnoses. If you received medical treatment from private physicians or hospitals, please complete the enclosed VA Form 21-4142, Authorization for Release of Information. Although we will request your treatment records, ultimately it is your responsibility to make sure we receive this evidence. Unfortunately, the development letter failed to inform that authorization was required for VA to obtain records from the physicians about whom VA was already aware, namely, Dr. Cary, Dr. Winston, and Dr. Waite. The request in the letter for the Veteran to complete a VA Form 21-4142 appears on its face to be conditional upon the Veteran having received additional treatment from additional physicians about whom the VA is unaware, because the letter says, "If you received treatment [...] please complete the enclosed VA Form 21-4142 [....]" As the letter made clear in the immediately preceding paragraph, VA was aware that the Veteran had received treatment from Dr. Cary, Dr. Winston, and Dr. Waite. Hence, if the Veteran did not receive treatment from new physicians, he may have reasonably believed, from the contents of the letter, that no additional information or authorization was required for VA to seek treatment records from named sources. The letter fails to inform that past records from Dr. Cary, Dr. Winston, and Dr. Waite would not be sought without additional authorization from the Veteran. In fact, the final sentence of the first page of the letter, as quoted above, appears to suggest that no action is required on the part of the Veteran in order for VA to obtain records from the three named physicians, "Although we will request your treatment records, [....]" The letter thus does not appear to request that the Veteran submit authorization in order for VA to obtain records from Dr. Cary, Dr. Winston, and Dr. Waite. The Veteran had already previously, in 2004, submitted authorization to obtain records from Dr. Cary. Additionally, the Veteran very neatly listed private treating physicians in his original claim submitted in May 2004. Hence, it appears likely that the Veteran would have submitted additional authorization to obtain prior records from Dr. Cary, Dr. Winston, and Dr. Waite if the AMC's development letter had made clear that this was required. The development letter also failed to inform that new VA examinations would be afforded to address the Veteran's claims only if medical evidence addressing the claimed disabilities and not previously associated with the claims file was obtained. Hence, the development letter not only failed to appropriately request assistance in obtaining relevant evidence, but failed to inform of the additional import of such required assistance. The Board finds that the AMC did not attain substantial compliance with the terms of the Board's August 2010 remand requesting evidentiary development. Remand is thus required for such development, pursuant to Stegall v. West, 11 Vet. App. 268 (1998). D'Aries v. Peake, 22 Vet. App. 97 (2008). Lumbar Spine Disability Regarding the Veteran's claimed lumbar spine disability, the Veteran was afforded a VA examination in September 2009 addressing claimed disability of the low back. The examiner in essence concluded that the Veteran did not have a low back disability, with contemporaneous treatment records reflecting neither findings nor treatment for such disability. The examiner noted that while the Veteran used a wheelchair, the examiner attributed this to the Veteran's severe chronic obstructive pulmonary disease (COPD) and portal hypertension, rather than due to any low back problem. Additionally, the examiner reviewed past treatment by a rheumatologist in 2007 for multiple joint pains, with the rheumatologist then attributing the pain to the Veteran's hepatitis C and discounting the presence of rheumatic pathology. The September 2009 examiner observed that the rheumatologist did not identify any low back disorder. The September 2009 examiner additionally expressed considerable doubt that a laminectomy performed in 1982 from L4 to S1 was due to back pain, as the Veteran had alleged. The Veteran's lumbar spine disability claim necessarily may turn on VA obtaining past records potentially supporting the existence of low back disability, including records reflecting the reason laminectomy was performed in 1982. Hiatal Hernia At his January 2010 hearing, the Veteran testified that his hiatal hernia first manifested around 1969, with a lot of heartburn, nausea, and vomiting. He added that he received treatment at the time and was told that there was something wrong with his stomach. He reported that he was then given Mylanta and Maalox, and he continued to take those medications in service. He testified that after service he received treatment for the condition by Dr. Winston. Also at the hearing, his wife added that Dr. Winston had prescribed Prevacid. The Veteran testified that he continued to take that medication up to the present time. He also testified that his current symptoms consisted of stomach pains, nausea, and occasional vomiting. His wife added that he also had trouble swallowing. Additionally, the Veteran testified that another private treating physician, Dr. Cary, had originally diagnosed his hiatal hernia around 1983. The Veteran added that he was contending that he had a hiatal hernia in service that was misdiagnosed as a stomach disorder. Further, he testified that he began receiving treatment from Dr. Winston prior to the 1990s, and that he also began seeing another doctor, Dr. Waite, in the early 1980s. The Veteran informed that he had been told the presentation for peptic ulcer and hiatal hernia were very similar. The Veteran was afforded a VA examination in September 2009 to address his claimed peptic ulcer disease and hiatal hernia. The examiner noted that the Veteran's complaints - principally of heartburn with some weekly nausea, treated currently with proton pump inhibitors - were consistent with gastroesophageal reflux disease (GERD). The examiner concluded that it was not at least as likely as not that the Veteran's "claimed peptic ulcer disorder/stomach disorder" was "the result of an event, disease, or injury in service." The examiner based this opinion on the following findings: "Review of the [service treatment records] indicates the Veteran was seen [a] few times for gastritis/gastroenteritis. These were acute illnesses which appear to have resolved. There is no indication in the [service treatment records] that the Veteran was having problems with heartburn, regurgitation, nausea, vomiting, dysphagia, or any other symptoms which would suggest [the] presence of hiatal hernia. As there were no[ne] of these complaints, there was no testing documented to determine if hiatal hernia was present." A review of the service treatment records reveals that the Veteran was treated in service on three distinct occasions for upper gastrointestinal symptoms. In July 1973 he was seen for complaints of upset stomach, headaches, dizziness, and some nausea, with gastritis assessed. In May 1974 he was seen for complaints of nausea, vomiting, and diarrhea, with viral gastroenteritis assessed. In June 1977 he was seen for complaints of nausea, vomiting, and vomiting blood, with mild gastritis assessed. Hence, the September 2009 VA examiner's assertion that there was "no indication" that the Veteran was treated in service for "problems with heartburn, regurgitation, nausea, vomiting, dysphagia" appears inaccurate. A medical opinion based on an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The Board thus may not rely on the negative opinion of the September 2009 VA examiner addressing claimed hiatal hernia. If an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for rating purposes. 38 C.F.R. § 4.2 (2012). Once VA provides an examination in a service connection claim, the examination 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). Hence, a new VA gastrointestinal examination is in order, with an opinion addressing likelihood of in-service onset of hiatal hernia or GERD. The Veteran has alleged that he has had symptoms of hiatal hernia since service and that he has been self-treating for this disorder since service. In the absence of evidence of inconsistent statements, inconsistence with facts of record, facial implausibility, or other signs of falsehood, unreliability, or misrepresentation, the Board may not discount the credibility of the Veteran's assertions. Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran is competent to address his current and past symptoms of disability. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed Cir. 2007). The Board accordingly also finds that the VA examination in September 2009 is deficient for failure to consider adequately the Veteran's credible self-reported history of symptoms of disability, and failure to address the likely etiology of the Veteran's claimed hiatal hernia including based on such asserted history. Upon remand examination, this self-reported history must be adequately considered. Respiratory Disability Obtained post-service records, including particularly recent VA treatment and examination records, reflect that the Veteran suffers from COPD medically attributed to decades of smoking one to two packs of cigarettes per day. A September 2009 VA examiner noted that the condition was confirmed by pulmonary function tests. At that examination the Veteran alleged that he had the condition since the 1970s. However, the examiner noted that he could find no reference to respiratory complaints in the service treatment records, notwithstanding the Veteran's assertions. The examiner opined that the COPD was "almost certainly" due to the Veteran's 40 years of smoking. It does not appear, however, that the examination provided any opinion addressing the likelihood of onset in service. The Veteran is competent to address his past respiratory symptoms, and the VA examiner should have considered these assertions. Jandreau. The Veteran's nearly 12 years of service certainly raises the possibility of onset of COPD in service rather than afterwards. Because the September 2009 examiner failed to address the likelihood of onset in service including based on lay-asserted symptoms, the September 2009 examination is inadequate. Hence, a new VA respiratory examination is in order, with an opinion addressing likelihood of in-service onset of respiratory disease process. 38 C.F.R. § 4.2; Barr. Hepatitis C The Veteran has testified that he shared toothbrushes and razors in service, in the course of duties as part of a mobile unit that had to embark on missions with very little notice, and hence with inadequate time to assure that everyone was properly equipped with personal hygiene items. The Veteran also made these assertions on his July 2004 hepatitis risk questionnaire. The Board in its August 2010 remand requested an addendum opinion addressing the likelihood that the Veteran contracted hepatitis C by such means of shared toothbrushes and shared razors in service. The examiner was also to address the Veteran's assertion that he had been treated for hepatitis C in 1977, shortly after separating from service. While an addendum medical opinion was obtained in December 2010, the opinion considered neither the Veteran's alleged use of shared toothbrushes and razors in service nor his alleged treatment in 1977. The addendum is thus substantially inadequate for failure to address these relevant remand requests, and a new addendum opinion must be obtained. Stegall; D'Aries; Barr. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a new development letter. Specifically inform him that his asserted past private treatment records from Dr. Cary, Dr. Winston, and Dr. Waite are of significant importance in supporting his claims, and that records from these sources cannot be obtained without the Veteran's authorization. Then ask him to complete authorization forms to obtain records from these sources. Also afford the Veteran the opportunity to submit additional evidence or argument in furtherance of his claims. 2. Thereafter, if authorization is received from the Veteran, undertake record development from the indicated sources for treatment from Dr. Cary, Dr. Winston, and Dr. Waite. All requests, responses, and records received should be documented within the Veteran's claims file. If the requested records do not exist or further efforts to obtain the records would be futile, notify the Veteran and his representative in accordance with 38 C.F.R. § 3.159(e). 3. Obtain and associate with the claims file any VA and private treatment records otherwise indicated by the record or Veteran and not yet obtained, with appropriate authorization as needed. Again, all requests, responses, and records received should be documented within the Veteran's claims file, and if the requested records do not exist or further efforts to obtain the records would be futile, notify the Veteran and his representative in accordance with 38 C.F.R. § 3.159(e). 4. Thereafter, if any obtained medical records indicate the presence of low back disability, schedule the Veteran for an appropriate VA examination to address the presence and etiology of low back disability. The claims file must be made available to and reviewed by the examiner. Any indicated studies should be performed. The examiner should duly consider the Veteran's assertions of current or past back disability or symptoms of disability as evidence of current or past disability, to the extent the assertions are within the ambit of lay knowledge. (E.g., the Veteran would be competent to assert that he had low back pain for the past 20 years, or that his physician 20 years ago told him he had a slipped disk, but he would not be competent to assert that he had a slipped disk 20 years ago even though he had never been told so by any clinician.) For each low back disability present during the period of the claim (between May 2004 and the present), the examiner should provide a separate opinion whether it is at least as likely as not (50 percent or greater probability) that the disorder originated during the Veteran's period of active service from October 1965 to July 1977 or is otherwise etiologically related to his active service. The examiner should consider the Veteran's self-reported history as well as past clinical and examination records. The examiner should also consider the reported L4 to S1 laminectomy performed in 1982. The rationale for each opinion expressed must also be provided. If the examiner is unable to provide any required opinion, he or she should explain why the opinion cannot be provided. 5. Also after completion of remand instructions 1, 2, and 3, schedule the Veteran for an appropriate examination to address the presence and etiology of any hiatal hernia or gastroesophageal reflux disease (GERD). The claims file must be made available to and reviewed by the examiner. Any indicated studies should be performed. The examiner should duly consider the Veteran's assertions of current or past hiatal hernia or GERD as evidence of current or past disability, to the extent the assertions are within the ambit of lay knowledge. (E.g., the Veteran would be competent to assert that he had heartburn for the past 20 years, or that his physician 20 years ago told him he had GERD, but he would not be competent to assert that he had GERD 20 years ago even though he had never been told so by any clinician.) For each gastroesophageal disability present during the period of the claim (between May 2004 and the present), the examiner should provide a separate opinion whether it is at least as likely as not (50 percent or greater probability) that the disorder originated during the Veteran's period of active service from October 1965 to July 1977 or is otherwise etiologically related to his active service. The examiner should consider the Veteran's self-reported history as well as past clinical and examination records. The rationale for each opinion expressed must also be provided. If the examiner is unable to provide any required opinion, he or she should explain why the opinion cannot be provided. 6. Also after completion of remand instructions 1, 2, and 3, schedule the Veteran for an appropriate examination to address the presence and etiology of any current respiratory disability. The claims file must be made available to and reviewed by the examiner. Any indicated studies should be performed. The examiner should duly consider the Veteran's assertions of current or past respiratory disability as evidence of current or past disability, to the extent the assertions are within the ambit of lay knowledge. (E.g., the Veteran would be competent to assert that he had difficulty breathing for the past 20 years, or that his physician 20 years ago told him he had COPD, but he would not be competent to assert that he had COPD 20 years ago even though he had never been told so by any clinician.) For each respiratory disability present during the period of the claim (between May 2004 and the present), the examiner should provide a separate opinion whether it is at least as likely as not (50 percent or greater probability) that the disorder originated during the Veteran's period of active service from October 1965 to July 1977 or is otherwise etiologically related to his active service. The examiner should consider the Veteran's self-reported history as well as past clinical and examination records. The rationale for each opinion expressed must also be provided. If the examiner is unable to provide any required opinion, he or she should explain why the opinion cannot be provided. 7. Also after completion of remand instructions 1, 2, and 3, obtain a medical opinion from a specialist in diseases of the liver. The claims file must be made available to and reviewed by the specialist. The specialist should review the documentary record, noting in particular the Veteran's assertions about potential means of his infection with hepatitis C, both in submitted statements and testimony and at past examinations. The specialist should note in particular the Veteran's assertion of shared razors and shared toothbrushes when on "mobility trips" in service which required mobilization with little time for adequate preparation or packing of personal care items. The specialist should opine as to the likelihood of the Veteran having contracted hepatitis C in service, including by this reported sharing of razors and sharing of toothbrushes. The specialist should also address the Veteran's assertion of having been treated by a private physician for his hepatitis C in 1977, shortly after service separation. The specialist should duly consider the Veteran's assertions of current or past hepatitis C or symptoms thereof, to the extent the assertions are within the ambit of lay knowledge. (E.g., the Veteran would be competent to assert that he had liver pain by indicating the location of the pain, and would be competent to assert that a physician told him 20 years ago that he had hepatitis, but he would not be competent to assert that he had hepatitis 20 years ago even though he had never been told this by any clinician.) The specialist should provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the Veteran was infected with hepatitis C during service from October 1965 to July 1977; that active hepatitis C began during service; or that hepatitis C is otherwise etiologically related to his active service. The specialist should consider the Veteran's self-reported history as well as past clinical and examination records. The rationale for each opinion expressed must also be provided. If the specialist is unable to provide any required opinion, he or she should explain why the opinion cannot be provided. 8. Thereafter, readjudicate the Veteran's claims. If any benefit sought on appeal is not granted to the Veteran's satisfaction, provide him and his representative with a supplemental statement of the case and an appropriate opportunity to respond. 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 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). _________________________________________________ Debbie A. Breitbeil Acting 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 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 the Veteran's appeal. 38 C.F.R. § 20.1100(b) (2012).