Citation Nr: 1756596 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 12-22 120 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for a stomach disorder, to include dyspepsia and GERD. 2. Entitlement to service connection for Graves disease, claimed as chronic fatigue due to an undiagnosed illness. 3. Entitlement to service connection for chest wall syndrome, claimed as chest pain due to an undiagnosed illness. 4. Entitlement to a total disability rating based on individual unemployability due to a service-connected disability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Matthew Schlickenmaier, Associate Counsel INTRODUCTION The Veteran had active service in the U.S. Marine Corps from May 1987 to August 1991. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In January 2015, the Board remanded the appeal for additional development and in November 2015, the Board denied, inter alia, entitlement to service connection for a stomach disorder, Graves disease, chest wall syndrome, and a right shoulder disability. The Board also remanded the issues of entitlement to service connection for sleep apnea, chronic obstructive pulmonary disease (COPD), eczema, and TDIU. In a February 2016 rating decision, the RO granted service connection for eczema, COPD and sleep apnea. Accordingly, those issues are no longer before the Board. The Veteran subsequently appealed the Board's November 2015 decision to the United States Court of Appeals for Veterans Claims (Court). In a May 2017 Memorandum Decision, the Court vacated the Board's denials of service connection for a stomach disorder, Graves disease, and chest wall syndrome but affirmed the denial of service connection for a right shoulder disability. As such, the issues of entitlement to service connection for a stomach disorder, Graves disease, and chest wall syndrome, are once again before the Board, along with the previously remanded issue of entitlement to a TDIU. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into account the existence of these electronic records. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND As to the stomach, the Court found that a March 2015 VA examination was inadequate because although the record showed that an emergency services visit to Oktibbeha County Hospital noted a diagnosis of "dyspepsia (GERD)," the examiner did not address dyspepsia. Accordingly, an addendum opinion is needed. The Court also found that the Board's conclusion that the Veteran's GERD was not a functional disorder was not based on a corroborating medical opinion and therefore the Board's finding was tantamount to the Board providing its own medical judgment in violation of the Court's holding in Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The examiner should also address this question. As to Graves Disease, the Court found that the Veteran's statement at an April 2011 VA examination that he was "being followed by endocrinologist in Birmingham and wishes to follow up there," gave notice to VA of the existence of potentially relevant private treatment records which VA should have attempted to obtain. The Court also found that because the March 2015 VA examiner had not reviewed these potentially relevant records, the examiner had not considered the Veteran's complete medical history and the opinion was therefore inadequate. Accordingly, after obtaining any identified medical records, an addendum opinion should be obtained. As to the chest, the Court found that the Board erred because it concluded that the Veteran's chest pain was attributed to the known clinical diagnosis of costochondritis even though there was no evidence of record supporting such a diagnosis. The Court observed that the record showed diagnoses of "chest wall syndrome" and "atypical chest pain," as well as other possible causes that the Board did not address, including calcified granuloma mass in the upper right lung, and mediastinal mass suspected of being a thymoma and a September 2008 record showing that the chest pain was diagnosed with other diseases of the mediastinum. The Board finds that an addendum opinion would assist the Board in answering this question. In addition, because the March 2015 VA examiner did not specifically address whether these symptoms may be related to an undiagnosed illness, the examiner should address that issue. The issue of entitlement to a TDIU is intertwined with the above and also has not been readjudicated as requested by the prior remand. Accordingly, the case is REMANDED for the following action: 1. Send to the Veteran a letter requesting that he provide sufficient information and a signed and dated authorization, via a VA Form 21-4142 (Authorization and Consent to Release Information) to enable VA to obtain any relevant private medical records relating to the endocrinologist in Birmingham he reported at the April 2011 VA examination. 2. Thereafter, forward the entire claims file to the examiner who prepared the March 2015 VA opinions addressing the etiology of a stomach disorder, Graves Disease, and chest wall syndrome, or, if that examiner is unavailable, to another suitably qualified VA examiner. The claims file should be reviewed by the examiner. (a) As to Graves Disease, after reviewing any recently obtained evidence, to specifically include any records associated with a Birmingham endocrinologist, the examiner should indicate whether such evidence has changed her opinion as to its etiology, and explain why or why not. (b) As to the stomach, the examiner should address the medical significance of the emergency services visit to Oktibbeha County Hospital noting a diagnosis of "dyspepsia (GERD)" and indicate whether it is as least as likely as not (50 percent probability or more) that dyspepsia is related to or had its onset during the Veteran's military service. The examiner should also address whether the Veteran's GERD is a functional gastrointestinal disorder. See 38 C.F.R. § 3.317 (2017). (c) As to chest pain, the examiner should first indicate whether the Veteran experiences any related symptoms that have not been attributed to a known clinical diagnosis. If any such signs or symptoms cannot be attributed to a known clinic diagnosis, the examiner should indicate if the symptoms have persisted for 6 months or more. Then, the examiner should identify all current diagnoses related to chest pain and, for each diagnosed disorder, indicate whether it is as least as likely as not (50 percent probability or more) that such disorder is related to or had its onset during the Veteran's military service. A complete rationale should accompany any opinion provided. 3. After completing any additional development deemed necessary, readjudicate the claims, to include the issue of entitlement to a TDIU. If any benefit requested on appeal is not granted to the Veteran's satisfaction, the appellant and his representative should be furnished a supplemental statement of the case, which addresses all of the evidence obtained after the issuance of the last supplemental statement of the case, and provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. 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 2014). _________________________________________________ GAYLE E. STROMMEN 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) (2017).