Citation Nr: 1626322 Decision Date: 06/30/16 Archive Date: 07/11/16 DOCKET NO. 11-27 226 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for Sjögren's syndrome, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Solomon, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1969 to May 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. This matter was previously before the Board in August 2013, when the Board remanded it to afford the Veteran a hearing before a Veterans' Law Judge (VLJ). In January 2014, the Veteran testified at a videoconference hearing before the undersigned VLJ. A transcript of the hearing is associated with the claims file. The Board subsequently remanded the case for further development in May 2014. The case has since been returned to the Board for appellate review. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although further delay is regrettable, based upon its review of the Veteran's claims file, the Board finds that further development is needed to meet its duty to assist the Veteran with regard to his claim. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015). The Veteran seeks entitlement to service connection for Sjögren's syndrome, to include as due to herbicide exposure. He asserts that he has experienced symptoms of Sjögren's syndrome, to include aches and pains, dry mouth, occasional dry eyes, and fatigue, during and since active service. The Veteran's military personnel records document that he served within the Republic of Vietnam (RVN) from July 1969 to July 1970. He is thus presumed to have been exposed to herbicides during his in-country RVN service. See 38 C.F.R. § 3.307(a)(6)(iii) (2015). The Veteran's service treatment records document in-service events including a motor vehicle accident resulting in abrasions and contusions in October 1970, and a diagnosis of mononucleosis in January 1971. Pursuant to the Board's May 2014 remand instructions, the Veteran was afforded an addendum VA medical opinion in July 2014, provided by the same examiner who conducted the August 2011 VA examination. In the July 2014 report, the VA examiner noted review of the Veteran's claims file, and engaged in an in-depth discussion as to the state of medical knowledge regarding the causes of Sjögren's syndrome. The examiner was asked to provide opinions as to the likelihood that the Veteran's Sjögren's syndrome is etiologically related to his active service, to include his in-service herbicide exposure, as well as any in-service event, injury or disease, to include the documented diagnosis of mononucleosis and injuries relating to a vehicular accident. The examiner was further instructed that she must consider the Veteran's statements asserting a continuity of symptomatology since service. The May 2014 supplemental medical report cited a number references in medical scientific literature indicating that an established cause of Sjögren's syndrome is not yet known, but that different hypotheses are under consideration. With respect to theories of service connection on bases other than presumptively as due to herbicide exposure, the examiner concluded that the Veteran did not manifest symptoms of Sjögren's syndrome during military service and that it was less likely than not that it was caused by an in-service injury, event, or illness. She made note of the service treatment records documenting complaints and treatment regarding the 1970 motor vehicle accident and 1971 mononucleosis diagnosis, but in both cases stated that the symptoms of pain and fatigue had fully resolved by March 1971, as noted in the March 1971 separation examination and report of medical history. The Board notes, however, that a March 1971 service treatment record from only five days prior to the separation examination documented the Veteran's complaint of being tired and weak. As it remains unclear whether the examiner was aware of and considered this evidence in forming her conclusion, a supplemental medical opinion is found warranted. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (noting that most of the probative value of a medical opinion comes from its reasoning and that it must be clear that the medical expert applied valid medical analysis to the significant facts of a particular case); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (conclusions based on an inaccurate factual premise lack probative value). The Board further notes that in the July 2014 report, the examiner stated that there were a number of articles in many professional journals investigating an association between autoimmune diseases such as Sjögren's with either genetic predisposition, epigenetic factors and/or infectious agents. One particular reference cited by the examiner, an article titled Pathogenesis of Sjögren's syndrome, specifically states that the Epstein-Barr virus (virus responsible for infectious mononucleosis) has been the subject of particular and renewed interest in terms of viruses postulated as having a role in the etiopathogenesis of Sjögren's syndrome. Although the examiner provided an opinion that there is "no evidence that [the Veteran's] mono or [motor vehicle accident] injuries masked the claimed condition," no opinion was provided as to the likelihood that the Veteran's Sjögren's syndrome is etiologically related to his in-service mononucleosis. As the Board specifically requested an opinion on this question, and none was provided, the development completed does not substantially comply with the Board's prior remand directives, and additional development is needed to ensure remand compliance. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure remand compliance). Accordingly, the case is REMANDED for the following action: 1. Obtain an addendum opinion from the VA examiner who authored the August 2011 examination and July 2014 addendum reports, or, if unavailable, from another appropriate VA examiner. The claims file and a copy of this remand must be made available for review, and the report must reflect that review of the claims file occurred. The examiner should then provide addendum opinions as to the following: a. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's Sjögren's syndrome arose during active service. The examiner's attention is directed to a chronological record of medical care in the Veteran's service treatment records documenting the Veteran's complaint of being "tired and weak" in March 1971, five days before his separation examination. The examiner is also to consider the Veteran and his wife's lay statements that the Veteran has experienced symptoms of dry mouth and fatigue since shortly following discharge from active duty. b. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's Sjögren's syndrome is etiologically related to an in-service injury, event, or illness. In responding to this inquiry, the examiner is asked to specifically address the likelihood of a relationship between the Veteran's Sjögren's syndrome and his in-service diagnosis of mononucleosis, with discussion of the medical literature pertaining to the hypothesized role of the Epstein - Barr virus in the cause and subsequent development of Sjögren's syndrome. 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 the conclusion as it is to find against it. The examiner must include in the medical report the rationale for any opinion expressed, citing to specific evidence in the file and/or to medical literature or treatises, as appropriate. If it is not possible to provide the requested opinion without resort to speculation, the examiner must state why speculation would be required in this case, e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc. If there are insufficient facts or data within the claims file, the examiner must identify the relevant testing, specialist's opinion, or other information needed to provide the requested opinion. 2. Thereafter, review the requested medical report to ensure responsiveness to, and compliance with, the directives of this remand; implement corrective procedures as needed. 3. After completing the above, conduct any additional development deemed necessary then readjudicate the Veteran's claim seeking entitlement to service connection for Sjögren's syndrome in light of all additional evidence received. If the benefit sought on appeal is not granted, the appellant and his representative should be furnished with a Supplemental Statement of the Case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter 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 2014). _________________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).