Citation Nr: 1732184 Decision Date: 08/09/17 Archive Date: 08/16/17 DOCKET NO. 10-41 610 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for a disorder manifested by a weakening of the muscles and loss of muscular control, also claimed as myotonic dystrophy. 2. Entitlement to service connection for a neurological disorder to include any such disorder manifested by essential tremors, paralysis agitans, distal polyneuropathy, or a combination thereof. 3. Entitlement to service connection for a psychiatric disorder, to include an anxiety or depressive disorder, and to include as secondary to inflammatory bowel disease and to other injuries and illnesses caused and continuing from initial onset of any injuries and illnesses from service. 4. Entitlement to service connection for a gastrointestinal disorder, characterized as chronic pancreatitis and previously claimed as intestinal disorder, irritable bowel syndrome, and gastritis. 5. Entitlement to service connection for a dermatological or allergic disorder characterized as bilateral hand dermatitis allergies, bilateral hand swelling, and skin rashes. 6. Entitlement to compensation based on the provisions of 38 U.S.C.A. § 1151 (West 2014) for a pancreas procedure or surgery complications, to include necrotizing pancreatitis disease, splenic vein thrombosis, muscle wasting, shaking, tremors, and inability to walk. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL Veteran; Veteran's spouse ATTORNEY FOR THE BOARD M. Shouman, Associate Counsel INTRODUCTION This appeal has been advanced on the docket of the United States Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) based on the Veteran's serious illness status pursuant to 38 C.F.R. § 20.900(c) (2016). The Veteran honorably served on active duty in the U.S. Air Force from April 1978 to September 1982. He also had service in the Reserves. The matters originally came before the Board on appeal from October 2009, September 2010, and October 2013 rating decisions of the VA Regional Office (RO) in San Diego, California. The October 2009 decision, in pertinent part, denied service connection for myotonic dystrophy and for an anxiety or depressive disorder. The September 2010 decision confirmed and continued the previous denials of service connection for chronic pancreatitis (previously claimed as intestinal disorder, irritable bowel syndrome, gastritis) secondary to chemical exposure to jet propellant-4 (JP-4) jet fuel; service connection for distal polyneuropathy and benign essential tremors; and service connection for allergies, bilateral hand swelling, and skin rashes secondary to JP-4 jet fuel. The October 2013 decision denied compensation under 38 U.S.C.A. § 1151 for pancreas surgery complications to include necrotizing pancreatitis disease, splenic vein thrombosis, muscle wasting, shaking, tremors, and inability to walk. The RO in Portland, Oregon currently had jurisdiction. The Board considered the claims in July 2016. The claims of entitlement to service connection for a gastrointestinal disorder, characterized as chronic pancreatitis and previously claimed as intestinal disorder, irritable bowel syndrome, and gastritis; entitlement to service connection for a dermatological or allergic disorder characterized as bilateral hand dermatitis allergies, bilateral hand swelling, and skin rashes; and entitlement to service connection for a neurological disorder to include any neurological disorder manifested by essential tremors, paralysis agitans, distal polyneuropathy, or a combination thereof were reopened. The Board remanded all six issues listed in this current decision for additional development. The Veteran testified before the undersigned Veterans Law Judge in a March 2016 hearing at the RO in Portland, Oregon. Moreover, the Veteran testified before a Hearing Officer at a December 2010 hearing at the RO in San Diego, California. Transcripts from the hearings were associated with the claims file and reviewed. The issues on appeal have been rephrased to better reflect the state of the record. The appeal is REMANDED to the agency of original jurisdiction. VA will notify the Veteran if further action is required. REMAND The Appeals Management Center (AMC), now realigned as the Appeals Management Office, failed to substantially comply with the Board's July 2016 remand directives. As such, an additional remand is necessary before the Board can adjudicate the issues on appeal. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (the Veteran has the right to compliance with remand orders by the Board). The Board notes that all claimed disorders, with the exception of the psychiatric disorder (which is contended to have been incurred in service and as secondary to other claimed disabilities) and any disabilities based on 38 U.S.C. § 1151, are primarily based on the premise of exposure to various toxins in JP-4 jet fuel and other chemicals while serving as a fuel specialist and later while repairing printing machines. Specifically, the Board concedes the Veteran's in-service exposure to not only JP-4 jet fuel, but also to leaded gasoline, diesel fuel, and trichloroethylene, as service treatment records and service personnel records corroborate his claims of such exposures. With respect to the issue of entitlement to service connection for a disorder manifested by a weakening of the muscles and loss of muscular control, also claimed as myotonic dystrophy, the July 2016 Board remand instructed the AMC to afford the Veteran appropriate examinations to determine whether the disorder is congenital, and if so whether intercurrent injury in service caused it to worsen beyond normal progression. Consequently, a neurological examination was conducted by VA in August 2016, and an addendum was provided in December 2016. Although the August 2016 VA examiner noted that the Veteran has essential tremor and that it is an inherited condition that is unrelated to military service and would not be caused or aggravated by any in-service exposure, the August 2016 VA examination and the subsequent addendum fail to properly address whether the Veteran incurred any superimposed disease or injury on his essential tremor during his military service (including exposure to toxic chemicals in service). Moreover, the August 2016 and December 2016 reports do not consider all relevant medical evidence in the claims file. Specifically, the July 2016 Board remand instructed the examiners to consider multiple medical treatises submitted in October 2010 regarding chemical exposures (10/22/2010, VBMS entry, Correspondence (multiple files)) and evidence from the Subcommittee on Permissible Exposure Levels for Medical Forces submitted in December 2010 (12/22/2010, VBMS entry, Web / HTML Documents). Furthermore, while December 2016 addendum mentions the September 2009 OCCEMED opinion on Internal Consultant and Toxicology Consult by M.B.B. MD, MPH, but neither the August 2016 VA examination nor the December 2016 addendum considers Dr. M.B.B.'s concern that the Veteran's father did not appear to have the Veteran's clinical presentation. 10/22/2010, VBMS entry, Medical Treatment Record - Non-Government Facility, at 14. This concern was also raised by Veteran in his lay statements, in which he indicated that his father's tremors were "minor" compared to his, and in which he emphasized that he had no tremors prior to service. E.g., 03/08/2016, VBMS entry, Hearing Testimony, at 11-12, 37. In light of this, the Board finds that the August 2016 examination and subsequent addendum are not adequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (noting that the Board had erred in failing to ensure a VA examination was adequate). Accordingly, the Board finds that an additional addendum is necessary to address whether the Veteran incurred any superimposed disease or injury on his essential tremor during his military service (including exposure to toxic chemicals in service), and if so what the resultant disability is, while considering the evidence specified above. With respect to the issue of entitlement to service connection for a neurological disorder to include any such disorder manifested by essential tremors, paralysis agitans, distal polyneuropathy, or a combination thereof, the July 2016 Board remand instructed the AMC to afford the Veteran appropriate examinations to determine, as discussed above, whether the Veteran's essential tremor was aggravated by intercurrent injury (including chemical exposures). The remand also instructed the AMC to provide examinations to clearly determine the nature and etiology of all neurological manifestations in light of the very complicated neurological history shown in the records, which includes records suggesting the Veteran had paralysis agitans, records refuting a diagnosis of paralysis agitans, and records suggesting the presence of a polyneuropathy, in addition to the essential tremors he was diagnosed with. Consequently, an August 2016 neurological examination was conducted and an addendum was provided in December 2016, as noted above. The August 2016 examination indicates that the Veteran's symptoms are consistent with a polyneuropathy of unclear etiology, but that it is less than likely that it was caused or aggravated by any in-service exposure. The December 2016 addendum concludes that the weight of medical literature and evidence available support the opinion that exposure to jet fuel and trichloroethylene are not related to the Veteran's polyneuropathy. However, as explained above, neither the examination nor the addendum considers the medical treatises submitted in October 2010 regarding chemical exposures and evidence from the Subcommittee on Permissible Exposure Levels for Medical Forces submitted in December 2010. In light of this, the Board finds that the August 2016 VA examination and subsequent addendum are not adequate for adjudication purposes. See id. Accordingly, the Board finds that an addendum is necessary to consider the evidence specified above. With respect to the issue of entitlement to service connection for a psychiatric disorder, to include an anxiety or depressive disorder, and to include as secondary to inflammatory bowel disease and to other injuries and illnesses caused and continuing from initial onset of any injuries and illnesses from service, the July 2016 Board remand instructed the AMC to afford the Veteran an appropriate examination to address whether he has a psychiatric disorder that began during or is causally related to service, to include whether it was caused or aggravated by his service-connected disabilities. Consequently, a mental disorders examination was conducted by VA in August 2016, with an addendum provided in November 2016. Although the August 2016 VA examiner noted that the Veteran at least as likely as not has mild, transient depressed mood and an "other specified anxiety disorder" that are related to his nonservice-connected chronic pancreatitis than to his service-connected disabilities, the VA examiner failed to address whether the Veteran's psychiatric disorders began during or were causally related to service. In light of this, the Board finds that the August 2016 VA examination and subsequent addendum are not adequate for adjudication purposes. See id. Accordingly, the Board finds that an additional addendum is necessary to address whether the Veteran's psychiatric disorders are directly related to his service. With respect to the issue of entitlement to service connection for a gastrointestinal disorder, characterized as chronic pancreatitis and previously claimed as intestinal disorder, irritable bowel syndrome, and gastritis, the July 2016 Board remand instructed the AMC to afford the Veteran with appropriate examinations to determine the nature, etiology, and severity of his claimed gastrointestinal disorder to include chronic pancreatitis with complications including portal vein thrombosis, splenic vein thrombosis, and irritable bowel syndrome, as well as any other complications from his March 2008 pancreatic surgery. Consequently, a gastrointestinal examination was conducted by VA in August 2016, with an addendum provided in December 2016. The August 2016 VA examiner diagnosed the Veteran with chronic pancreatitis, and indicated no residuals from a 1993 cholecystectomy. The December 2016 addendum notes that the Veteran's gastrointestinal pancreatic cyst and irritable bowel syndrome were not caused by jet fuel or printer ink exposure. However, the August 2016 VA examination and subsequent addendum do not consider all relevant medical evidence in the claims file. Specifically, the July 2016 Board remand instructed the examiners to consider the medical treatises and evidence from the Subcommittee on Permissible Exposure Levels for Medical Forces, as described above. In light of this, the Board finds that the August 2016 examination and subsequent addendum are not adequate for adjudication purposes. See id. Accordingly, the Board finds that an additional addendum is necessary to consider the evidence specified above. With respect to the issue of a claim for entitlement to service connection for a dermatological or allergic disorder characterized as bilateral hand dermatitis allergies, bilateral hand swelling, and skin rashes, the July 2016 Board remand instructed the AMC to afford the Veteran with an appropriate examination to determine the nature, etiology, and severity of his claimed dermatological or allergic disorder. Consequently, a dermatology examination was conducted by VA in August 2016. The August 2016 VA examiner concluded that there is no evidence of a dermatologic disorder associated with jet fuel exposure or chemical exposure during the Veteran's time in the military. The VA examiner explained that the Veteran's skin conditions are due to "changes or normal aging." However, the August 2016 VA examination does not consider all relevant medical evidence in the claims file. Specifically, the July 2016 Board remand instructed the examiners to consider the medical treatises and evidence from the Subcommittee on Permissible Exposure Levels for Medical Forces, as described above. In light of this, the Board finds that the August 2016 examination is not adequate for adjudication purposes. See id. Accordingly, the Board finds that an additional addendum is necessary to consider the evidence specified above. With respect to the issue of entitlement to compensation based on the provisions of 38 U.S.C.A. § 1151 for a pancreas procedure or surgery complications, to include necrotizing pancreatitis disease, splenic vein thrombosis, muscle wasting, shaking, tremors, and inability to walk, a VA examiner in August 2016 opined that the Veteran's chronic pancreatitis was not due to negligence from VA treatment. 08/17/2016 VA Examination (DBQ Medical Opinion), at 8. However, it is not clear from the VA examination whether the chronic pancreatitis was due to an event not reasonably foreseeable. The August 2016 VA examiner remarked that the "resultant complications . . . are known sequelae of such interventions," but in the same examination she also stated that the chronic pancreatitis developed "as a result of events [that] were not reasonably foreseeable." Id. (emphases added). Accordingly, the Board finds that an additional addendum is necessary to obtain a clarification as to whether the Veteran's chronic pancreatitis was due to an event not reasonably foreseeable. Additionally, on remand, outstanding, pertinent VA treatment records should be obtained. Accordingly, the case is REMANDED for the following actions: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain and associate with the claims file any outstanding, pertinent VA treatment records, including records from July 2016 to the present. Additionally, notify the Veteran that he may submit any relevant records in his possession to VA. 2. After all development has been completed and returned from step 1 above, then request a VA examiner who conducted the August 2016 gastrointestinal examination to review the claims file. If the August 2016 VA examiner is unavailable, then another appropriate examiner should be requested to review the claims file. The examiner is asked to review the claims file to become familiar with the pertinent medical history before providing a medical opinion on the following: a. Are any gastrointestinal disorders shown or treated at any time during the claim period (from September 1998 to the present) at least as likely as not (50 percent or greater probability) related to active service? b. Did the March 2008 surgery cause additional disability to the Veteran? If additional disability exists, is the additional disability at least as likely as not the result of VA's failure to exercise the degree of care that would be expected of a reasonable healthcare provider in performing the surgery? If additional disability exists, was the additional disability the result of an event not reasonably foreseeable? Consider all lay and medical evidence, including the September 2009 OCCEMED opinion on Internal Consultant and Toxicology Consult by M.B.B. MD, MPH, the medical treatises submitted in October 2010 regarding chemical exposures, and evidence from the Subcommittee on Permissible Exposure Levels for Medical Forces submitted in December 2010. Consider also all previous VA examinations addressing his gastrointestinal disorders. For any conclusions, please remark on the Veteran's conceded exposure not only JP-4 jet fuel, but also to leaded gasoline, diesel fuel, and trichloroethylene. Provide a clear and comprehensive rationale for any conclusions. If the requested opinion cannot be provided without resort to speculation, court cases require the examiner to explain why the opinion cannot be offered, and to state whether the inability is due to the absence of evidence or to the limits of scientific or medical knowledge. 3. After all development has been completed and returned from steps 1-2 above, then request a VA examiner who conducted the August 2016 neurological examination to review the claims file. If the August 2016 VA examiner is unavailable, then another appropriate examiner should be requested to review the claims file. The examiner is asked to review the claims file to become familiar with the pertinent medical history before providing a medical opinion on the following: a. Are any of the Veteran's claimed disorders affecting the muscular or neurological system (to include any disorder manifested by a weakening of the muscles and loss of muscular control) and any neurological disorder (to include any such disorder manifested by essential tremors, paralysis agitans, distal polyneuropathy, or a combination thereof) shown to be a developmental defect or a developmental disease? For VA purposes, a defect differs from a disease in that the former is "more or less stationary in nature" while the latter is "capable of improving or deteriorating." Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009) (quoting DVA Op. Gen. C. Prec. 82-90, at 2). b. If any diagnosed claimed disorders affecting the muscular or neurological system is a development defect, please opine as to whether any such defect is at least as likely as not (50 percent or greater probability) that the Veteran incurred any superimposed disease or injury on such congenital defect during his military service (including by exposure to toxic chemicals in service). If the answer to the above question is "Yes," please describe the resultant disability. c. If the answer to question (a) above is that the Veteran has a disease or disorder affecting the muscular or neurological system that is not of a congenital or developmental origin, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that such disease or disorder affecting the muscular or neurological system was incurred in or aggravated beyond the normal course of the condition by his active service, to include by his conceded exposure to toxic chemicals in service. d. The examiner should also review the findings from the examination and addenda, detailed in step 2 above, pertaining to the questions of whether there is additional disability as a result of VA medical care involving treatment and medical procedures performed on the pancreas in March 2008. Specifically, the examiner should clarify whether any additional disability from such procedures includes any claimed neuromuscular disorders and state the nature of such neurological or muscular disorders affected by such VA medical procedures performed on the pancreas. Consider all lay and medical evidence, including the medical treatises submitted in October 2010 regarding chemical exposures, and evidence from the Subcommittee on Permissible Exposure Levels for Medical Forces submitted in December 2010. Consider also the September 2009 OCCEMED opinion on Internal Consultant and Toxicology Consult by M.B.B. MD, MPH, expressing concern that the Veteran's father did not appear to have the Veteran's clinical presentation. Furthermore, consider the Veteran's contention that he had no tremors prior to service. Consider also all previous VA examinations addressing his neuromuscular or neurological disorders. For any conclusions, please remark on the Veteran's conceded exposure not only JP-4 jet fuel, but also to leaded gasoline, diesel fuel, and trichloroethylene. Provide a clear and comprehensive rationale for any conclusions. If the requested opinion cannot be provided without resort to speculation, court cases require the examiner to explain why the opinion cannot be offered, and to state whether the inability is due to the absence of evidence or to the limits of scientific or medical knowledge. 4. After all development has been completed and returned from step 1 above, then request a VA examiner who conducted the August 2016 dermatology examination to review the claims file. If the August 2016 VA examiner is unavailable, then another appropriate examiner should be requested to review the claims file. The examiner is asked to review the claims file to become familiar with the pertinent medical history before providing a medical opinion on the following: a. Are any dermatological or allergic disorders shown or treated at any time during the claim period (from September 1998 to the present) at least as likely as not (50 percent or greater probability) related to active service? Consider all lay and medical evidence, including the September 2009 OCCEMED opinion on Internal Consultant and Toxicology Consult by M.B.B. MD, MPH, the medical treatises submitted in October 2010 regarding chemical exposures, and evidence from the Subcommittee on Permissible Exposure Levels for Medical Forces submitted in December 2010. Consider also all previous VA examinations addressing his gastrointestinal disorders. For any conclusions, please remark on the Veteran's conceded exposure not only JP-4 jet fuel, but also to leaded gasoline, diesel fuel, and trichloroethylene. Provide a clear and comprehensive rationale for any conclusions. If the requested opinion cannot be provided without resort to speculation, court cases require the examiner to explain why the opinion cannot be offered, and to state whether the inability is due to the absence of evidence or to the limits of scientific or medical knowledge. 5. After all development has been completed and returned from steps 1-4 above, then request the VA examiner who conducted the August 2016 mental disorders examination to review the claims file. If the August 2016 VA examiner is unavailable, then another appropriate examiner should be requested to review the claims file. The examiner is asked to review the claims file to become familiar with the pertinent medical history before providing a medical opinion on the following: a. While the August 2016 VA examination and November 2016 addendum posits a connection between the Veteran's psychiatric disabilities and his nonservice-connected chronic pancreatitis, are any psychiatric disabilities shown or treated at any time during the claim period (from May 2009 to the present) at least as likely as not (50 percent or greater probability) related to active service? Consider all lay and medical evidence, including the Veteran's statements at the March 2016 Board hearing that he displayed symptoms of anxiety and depression during service. 03/08/2016, VBMS entry, Hearing Testimony, at 20. Consider also his early treatments for depression, including being recommended an antidepressant in the 1990s. E.g., 12/22/2010, VBMS entry, Medical Treatment Record - Non-Government Facility (Kaiser 75 pg 1990s records). Moreover, consider all previous VA examinations addressing his psychiatric disorders. Provide a clear and comprehensive rationale for any conclusions. If the requested opinion cannot be provided without resort to speculation, court cases require the examiner to explain why the opinion cannot be offered, and to state whether the inability is due to the absence of evidence or to the limits of scientific or medical knowledge. b. If the above development results in a finding that service connection is warranted, pursuant to 38 U.S.C.A. § 1151 or otherwise, for any or all of the following: gastrointestinal disorders; neurological or neuromuscular disorders (to include any disorder manifested by a weakening of the muscles and loss of muscular control and to include any such disorder manifested by essential tremors, paralysis agitans, distal polyneuropathy, or a combination thereof); and dermatological or allergic disorder, the VA examiner should give an opinion stating whether it is at least as likely as not (50 percent or greater probability) that any psychiatric disorder, to include an anxiety or depressive disorder, was caused or aggravated by any of these aforementioned disorders of the gastrointestinal system, neurological or neuromuscular system, or dermatological or immune system claimed as affecting the hands. 6. After all development has been completed and returned from steps 1-5 above, if any benefit sought remains denied, issue a supplemental statement of the case with consideration to all pertinent evidence, and return the case to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and arguments on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369, 372-73 (1999) (per curiam). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the U.S. Court of Appeals for Veterans Claims (CAVC) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112. _________________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252, only a decision of the Board is appealable to the CAVC. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits. 38 C.F.R. § 20.1100(b).