Citation Nr: 1633691 Decision Date: 08/25/16 Archive Date: 08/31/16 DOCKET NO. 10-04 805 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES Entitlement to service connection for sarcoidosis. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and Veteran's Spouse ATTORNEY FOR THE BOARD A. Barone, Counsel INTRODUCTION The Veteran served on active duty from June 1983 to December 1991. This case is before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Atlanta, Georgia Department of Veterans Affairs (VA) Regional Office (RO). (As explained below, however, the issue remaining on appeal was not formally identified in the June 2008 rating decision.) The Veteran's claims file is now in the jurisdiction of the Nashville, Tennessee RO. A Travel Board hearing was held before the undersigned in November 2014. A transcript of the hearing is of record. The issue on appeal in this case was originally characterized by the Board as "[e]ntitlement to service connection for degenerative joint disease of the lumbar spine (also claimed as osteoarthritis and spondylosis), to include as secondary to sarcoidosis." In January 2015, the appeal was remanded for further evidentiary development; the January 2015 Board decision also referred a claim of entitlement to service connection for sarcoidosis to the RO for initial adjudication. In September 2015, the appeal was again remanded for additional evidentiary development. In the September 2015 remand, the Board observed that the RO had not yet adjudicated the issue of entitlement to service connection for sarcoidosis and explained that the issue of entitlement to service connection for sarcoidosis was encompassed within the scope of the appeal as a component of the remanded claim of entitlement to service connection for a spine disability. See DeLisio v. Shinseki, 25 Vet. App. 45, 53 (2011). Accordingly, the Board listed the issue of entitlement to service connection for sarcoidosis on the title page and directed action to adjudicate the claim in its remand directives. The Board's September 2015 remand directed that the Agency of Original Jurisdiction (AOJ) "adjudicate the issue of entitlement to service connection for sarcoidosis, providing notice of the decision to the Veteran and his representative." The Board instructed: "If the Veteran files a notice of disagreement (NOD) on the issue, the AOJ should issue the Veteran a Statement of the Case (SOC)," and "[t]hereafter, if the Veteran files a timely substantive appeal (VA Form 9) on the issue, the AOJ should undertake any further action indicated...." These instructions contemplated that a rating decision adjudicating the sarcoidosis issue be issued to the Veteran and that the Veteran be given the opportunity to formally appeal the determination. However, the Board notes that the RO/AOJ readjudicated the sarcoidosis issue in an April 2016 supplemental SOC (SSOC) and essentially indicated that the issue was already in appellate status. The Board observes that the AOJ interpreted the status of the sarcoidosis issue under DeLisio to be such that the sarcoidosis issue was considered part and parcel of the back disability claim that had been perfected for appellate review. The Board finds that actions taken by VA since the September 2015 Board remand have led the Veteran to believe that the issue of entitlement to service connection for sarcoidosis is currently on appeal. See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). Therefore, to ensure there is no prejudice to the Veteran, the Board is taking jurisdiction of this issue. During the processing of the Board's September 2015 remand, the RO issued a rating decision in April 2016 that awarded service connection for lumbosacral strain and intervertebral disc syndrome. This decision notified the Veteran that it represented a "total grant of benefits sought on appeal for this issue," and that "this issue is considered resolved in full." (A June 2016 internal RO memorandum documents that the Veteran expressed during phone contact that "he was satisfied with the decision....") The July 2016 brief from the Veteran's representative continues to discuss an issue of "[e]ntitlement to service connection for a lumbar spine disability," but the issue is no longer in appellate status as it was resolved by the award of the benefit sought. The Board observes that the April 2016 rating decision granted service connection for the Veteran's back disability "established as directly related to military service" with no indication of exclusion of any component of the claimed disability from the scope of the award in the "total grant of benefits sought." Accordingly, no claim of entitlement to service connection for a back disability is currently in appellate status before the Board at this time. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Significantly, the record contains a December 2014 opinion from Dr. C.P. that indicates that the author is the Veteran's physician and that the Veteran has a diagnosis of "Systemic Sarcoidosis/Neurosarcoidosis." Dr. C.P.'s December 2014 opinion indicates that the diagnosis is more likely than not related to his military service. The Board's September 2015 remand noted that the evidentiary record does not contain any other treatment records from this medical provider. As any such records may be pertinent to the Veteran's claims of service connection, the September 2015 Board remand directed that an attempt must be made to obtain them on remand. However, the record does not reflect that an attempt to obtain these records has been completed. Remand is warranted to attempt to obtain the pertinent medical records. Where the remand orders of the Board are not complied with, the Board, as a matter of law, errs when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). The Board's September 2015 remand directed that the RO should "afford the Veteran an appropriate VA examination to determine whether he has sarcoidosis and, if so, its etiology." The Board requested that the VA examiner complete "[a]ny necessary diagnostic testing," to attempt to confirm whether the Veteran has sarcoidosis (and, if so, to determine whether it is etiologically linked to his military service). The Board specifically directed: In providing an opinion, the examiner should address the significance of Dr. C.P.'s December 2014 opinion noting in-service signs and symptoms were consistent with sarcoidosis and that the Veteran had in-service risk factors for sarcoidosis; the Veteran's family history of sarcoidosis (paternal aunt and paternal grandmother), noted in a January 2015 VA treatment record; a March 2015 VA treatment record indicating that sarcoid lung involvement had been ruled out; and an April 2015 VA ophthalmology note declining to rule out sarcoidosis as a factor in the Veteran's eye disabilities. The resulting January 2016 VA medical examination report presents an opinion finding that "there is no documented medical evidence in the Veteran's records to confirm the diagnosis of Sarcoidosis." The January 2016 VA medical opinion discusses that "on December 17, 2014 a detailed eye evaluation was made at the Atlanta VA Medical Center, with a concern, that the Veteran could possibly have Neuro-Sarcoidosis, however, there was no confirmation made by the provider at the time that the Veteran definitely had the diagnosis of Neuro-Sarcoidosis." The January 2016 VA medical opinion discusses that "a consult was submitted to the Pulmonary Department at the Atlanta VA Medical Center at which time on January 9, 2015, the Veteran was evaluated by a Pulmonary Specialist, and could not find a diagnosis of Pulmonary Sarcoidosis on CT scan of the chest." The January 2016 VA medical opinion also discusses that "further Pathology testing of cells obtained from a Bronchoscopy procedure noted on 2/20/2015, but again, no mention of a confirmation of a confirmed diagnosis of Pulmonary Sarcoidosis." A January 2016 VA pulmonary examination report states that the Veteran "has been recently worked up to rule out sarcoidosis, without any definitive diagnostic studies to confirm at this time." It is not entirely clear to the Board whether all indicated diagnostic testing has been completed to determine whether or not a sarcoidosis diagnosis may be confirmed, to include consideration of sarcoidosis beyond its potential to manifest as a pulmonary condition. Sarcoidosis is defined as a chronic, progressive, systemic granulomatous reticulosis of unknown etiology, characterized by hard tubercles, which can affect almost any organ or tissue. Dorland's Illustrated Medical Dictionary 1668 (32d ed. 2012). The January 2016 VA medical opinion does not directly respond to the Board's remand instruction to address "the significance of Dr. C.P.'s December 2014 opinion noting in-service signs and symptoms were consistent with sarcoidosis and that the Veteran had in-service risk factors for sarcoidosis," "the Veteran's family history of sarcoidosis (paternal aunt and paternal grandmother), noted in a January 2015 VA treatment record," "a March 2015 VA treatment record indicating that sarcoid lung involvement had been ruled out," and "an April 2015 VA ophthalmology note declining to rule out sarcoidosis as a factor in the Veteran's eye disabilities." The Board views the referenced medical documentation as pertinent to both the diagnostic and the etiological questions presented in the examination request, especially in light of the especially complex and challenging nature of the potential sarcoidosis diagnosis in this case. During the processing of this remand, the AOJ shall have the opportunity to obtain an addendum addressing the referenced medical documentation. In June 2016, the Veteran submitted a significant written statement with a detailed discussion directing attention to and discussing various details of his medical treatment; he contends that he suffers from sarcoidosis featuring a complex combination of impairments involving various symptoms in various systems, including "my liver, lungs, heart, skin, and vision." The Veteran also asserts that the VA examiner "fails to mention that Ophthalmology acknowledged brain injury combined with elevated ACE bloodwork on 23 Oct 2014. Damage to the cranial nerves was confirmed by brain MRI due to Neurosarcoidosis, differentiated from a traumatic brain injury...." The significance of the Veteran's VA medical records associated with his assertions is not entirely clear to the Board's lay sensibilities, and it is not entirely clear whether the Veteran's VA medical records document findings consistent with the Veteran's assertions. The Board notes that a January 2015 VA medical report notes the need for "MRI brain and orbit with and without contrast to r/o compressive lesion vs neurosarcoid." A later January 2015 VA medical report states that "MRI results only show atrophy of right optic nerve but no other abnormalities [t]hat may point towards an etiology." During the processing of this remand, clarification and amendment of the January 2016 VA medical opinion shall have the opportunity to address the medical contentions and details to which the Veteran's more recent June 2016 statement directs attention. The record reflects that the Veteran receives VA treatment at the Atlanta and Memphis VAMCs. The record contains VA records from the Atlanta VAMC to April 2016 (in Virtual VA) and from the Memphis VAMC to November 2015. As VA treatment records are constructively of record and may be pertinent to the Veteran's claim, updated records must be obtained on remand. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. With any needed assistance from the Veteran, obtain all private treatment records pertaining to the claimed sarcoidosis, specifically including any records from Dr. C.P. associated with the diagnosis of "Systemic Sarcoidosis/Neurosarcoidosis" presented in Dr. C.P.'s December 2014 statement. 2. Obtain (and associate with the claims-file) any pertinent VA treatment records from the Memphis VAMC from November 2015 to the present and from the Atlanta VAMC from April 2016 to the present. 3. After the record is determined to be complete, return the reports of the January 2016 VA medical examination regarding the Veteran's sarcoidosis to the VA examiner for additions and clarifications regarding the earlier medical opinions, with full consideration of the entire record on appeal. The VA examiner should be asked to re-review the claims-file and address each of the following: (a) Does the Veteran have a current diagnosis of sarcoidosis? In answering this question, please explain whether all indicated diagnostic testing has been completed to reasonably attempt to confirm the Veteran's assertion that he has sarcoidosis (considering the Veteran's contention of pertinent manifestations affecting various organs, not limited to the lungs). Please also discuss all pertinent indications of sarcoidosis in the Veteran's recorded medical history, to specifically include the December 2014 submission from Dr. C.P. stating that the Veteran has a diagnosis of sarcoidosis (and any pertinent treatment records from Dr. C.P. added to the claims-file during the processing of this remand). Please also specifically discuss the assertions presented in the Veteran's June 2016 written statement presenting assertions referencing various details of his medical treatment associated with the claimed sarcoidosis and claimed manifestations affecting a variety of systems / organs, specifically including his contention that an MRI has confirmed that he has cranial nerve damage specific to sarcoidosis. (b) If a diagnosis of sarcoidosis is made, then is it at least as likely as not (i.e., probability of 50 percent or higher) that the Veteran's sarcoidosis had its clinical onset in service or is otherwise related to active duty, to include as based on removal of nonskid coating from naval ships during service? In answering both items above, the examiner should address (i) the significance of Dr. C.P.'s December 2014 opinion stating that the Veteran is diagnosed with "Systemic Sarcoidosis/Neurosarcoidosis;" (ii) any available treatment records from Dr. C.P.; (iii) the December 2014 medical opinion from Dr. C.P. noting in-service signs and symptoms consistent with sarcoidosis and that the Veteran had in-service risk factors for sarcoidosis; (iv) the Veteran's family history of sarcoidosis (paternal aunt and paternal grandmother), noted in a January 2015 VA treatment record; (v) a March 2015 VA treatment record indicating that sarcoid lung involvement had been ruled out; (vi) an April 2015 VA ophthalmology note declining to rule out sarcoidosis as a factor in the Veteran's eye disabilities, and (vii) the assertions presented in the Veteran's June 2016 written statement directing attention to and discussing various details of his medical treatment for claimed sarcoidosis (such as his contention that an MRI confirmed that he has cranial nerve damage specific to sarcoidosis). A complete rationale must be provided for all opinions rendered. If the examiner cannot provide any requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 4. If a diagnosis of sarcoidosis is confirmed, then complete the necessary development regarding radiogenic diseases in accordance with 38 C.F.R. § 3.311 (as discussed in the Board's prior September 2015 remand). 5. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue of service connection for sarcoidosis. If the benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and afford them a reasonable opportunity to respond. Then return the case to the Board for further appellate review, if otherwise in order. 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). _________________________________________________ M. E. LARKIN 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).