Citation Nr: 1752449 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 06-18 787 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for peptic ulcer disease. 2. Entitlement to service connection for a left knee disability. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD J. Smith-Jennings, Associate Counsel INTRODUCTION The Veteran served on active duty from February 2003 to April 2004. He also had active duty for training from June 1978 to September 1978 and additional duty in the United States Army National Guard. These matters come to the Board of Veterans' Appeals (Board) on appeal from October 2005 and August 2007 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Board previously remanded the claim for service connection for peptic ulcer disease for additional development. The case now returns 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 the Board regrets the additional delay, further development is necessary prior to the adjudication of the issues on appeal. The Veteran seeks service connection for peptic ulcer disease. Specifically, the Veteran contends that he developed and was treated for peptic ulcer disease during service. Alternately, the Veteran contends that his peptic ulcer disease was aggravated by medicines used to treat his service-connected disabilities. In this regard, the evidence of record includes November 2012, March 2013, and March 2015 VA examination reports. The November 2012 VA examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The November 2012 examiner reasoned that the Veteran's medical records do not include a definite diagnosis of a peptic ulcer. The November 2012 VA examiner further reasoned that the Veteran has exacerbation more likely due to heavy alcohol ingestion and he uses NSAIDs maybe two times per week, so it is less likely than not that his medication worsened his peptic symptoms. However, the Board remanded the issue for an additional opinion because the examiner did not document whether he reviewed the Veteran's Virtual VA records as requested in the October 2012 remand. Subsequently, a March 2013 addendum opinion was requested. The March 2013 VA examiner found no change in the prior opinion was needed. However, the March 2013 examiner indicated that she did not have access to Virtual VA, so the Board again remanded the claim for an additional opinion in October 2013. Pursuant to the October 2013 Remand, a March 2015 VA examination report was associated with the Veteran's claims file. The March 2015 VA examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that the Veteran does not currently have a chronic clinically-identifiable peptic ulcer. Significantly, however, the Veteran has since submitted private medical records which document that the Veteran was diagnosed with active/chronic peptic ulcer disease. Therefore, an additional VA examiner opinion addressing this diagnosis is needed. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service-connection claim, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Turning to the Veteran's claim for service connection for a left knee disability. The Veteran contends that he injured his left knee during service when he jumped from a truck that was struck by an enemy rocket propelled grenade. In this regard, the evidence of record includes a January 2010 VA examination report in which the examiner diagnosed the Veteran with degenerative joint disease of the left knee. However, the examiner stated that he was unable to offer an opinion on etiology without resorting to mere speculation because the c-file was not made available for review. The evidence of record otherwise includes an October 2010 VA examination report in which, after reviewing the c-file, the examiner opined that the Veteran's left knee condition was less likely as not incurred in or as a result of his military service. The examiner reasoned that the Veteran's service treatment records (STRs) show no record of injury to the left knee during military service or any evidence of a chronic knee condition during service. The October 2010 VA examiner relied on the absence of medical evidence of a left knee injury in the STRs and improperly discounted the Veteran's reports of continuing symptoms when explaining his rationale. Therefore, an additional opinion that considers and addresses the Veteran's competent statements regarding the onset of his left knee symptoms must be obtained on remand. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (examination inadequate where the examiner relied on lack of evidence in service treatment records to provide negative opinion); Barr v. Nicholson, 21 Vet. App. at 311. Additionally, the record reveals that several attempts have been made to ascertain the Veteran's status of duty on January 15, 1988; March 31, 1988; and May 16, 1991. However, the Veteran's duty status (i.e. ACDUTRA or INACDUTRA) on these pertinent dates remains unclear. This information should be obtained on remand. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran provide or authorize VA to obtain records of his relevant treatment that have not yet been associated with the claims file, and associate with the claims file any outstanding VA treatment records. 2. Issue a VA Memorandum of Formal Finding regarding the Veteran's character of service to include the exact dates of his active duty, ACDUTRA, inactive duty, and INACDUTRA. 3. Schedule the Veteran, if necessary, for a VA examination to determine the nature, etiology, and date of onset of the Veteran's peptic ulcer disease. The claims file should be made available to the examiner and review of the file should be noted in the requested report. The examiner should record the full history of the identified disability, including the Veteran's competent account of his symptoms. Following review of the claims file and examination of the Veteran, the examiner should respond to the following: (a) Is it at least as likely as not (50 percent probability or greater) that the diagnosed peptic ulcer disease had its onset during active service, or an identified period of active duty for training or inactive duty for training; or within one year of the Veteran's separation from active service; or is otherwise related to service? The examiner is asked to discuss the Veteran's private medical records which document a current diagnosis of chronic/active peptic ulcer disease. The examiner is also asked to discuss treatment for an old ulcer problem, nausea, and acid in mouth documented in the Veteran's STRs. (b) Is it at least as likely as not that the diagnosed peptic ulcer disease was caused or aggravated by the Veteran's prescribed medication for service-connected disabilities? All findings and conclusions should be supported with a complete rationale and set forth in a legible report, which should reflect the examiner's consideration and analysis of both the medical and lay evidence of record. If it is not possible to provide an opinion without resort to speculation, the reason that is so should explained, indicating whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide an opinion is based on the limits of medical knowledge. 4. Schedule the Veteran, if necessary, for a VA examination to determine the nature, etiology, and date of onset of the Veteran's left knee disability. The claims file should be made available to the examiner and review of the file should be noted in the requested report. The examiner should record the full history of the identified disability, including the Veteran's competent account of his symptoms. Following review of the claims file and examination of the Veteran, the examiner should respond to the following: (a) Is it at least as likely as not (50 percent probability or greater) that the diagnosed left knee disability had its onset during active service, or an identified period of active duty for training or inactive duty for training ; or within one year of the Veteran's separation from active service; or is otherwise related to service? The examiner should discuss the Veteran's contention that he injured his left knee when he jumped from a truck that was struck by an enemy rocket propelled grenade. All findings and conclusions should be supported with a complete rationale and set forth in a legible report, which should reflect the examiner's consideration and analysis of both the medical and lay evidence of record. If it is not possible to provide an opinion without resort to speculation, the reason that is so should explained, indicating whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide an opinion is based on the limits of medical knowledge. 5. Readjudicate the claim on appeal. If the benefits requested on appeal are not granted in full, the Veteran and his representative should be furnished a supplemental statement of the case and provided an opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. 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 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.S. §§ 5109B, 7112 (LexisNexis 2017). _________________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.S. § 7252 (LexisNexis 2017), 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) (2017).