Citation Nr: 1800751 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 12-02 733 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a recurrent gastrointestinal disorder, to include gastroenteritis, appendectomy residuals, gastroesophageal reflux disease (GERD), and hiatal hernia (recurrent gastrointestinal disorder). 2. Entitlement to service connection for recurrent head trauma residuals, to include facial trauma residuals, traumatic brain injury (TBI) residuals, headaches, disorientation, pressure, and an acquired psychiatric disorder (recurrent head trauma residuals). REPRESENTATION The Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD V-N. Pratt, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1979 to February 1980. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In June 2015, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. In August 2015 and September 2016, the Board remanded the case to the RO for further evidentiary development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Board regrets further delay, but finds that additional development is necessary before a decision may be rendered on these issues on appeal. A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with that remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). In this regard, the Board finds that the AOJ failed to comply with the directives of the September 2016 Board remand for both issues on appeal. Recurrent Gastrointestinal Disorder In the last remand in September 2016, the Board found that a November 2015 VA gastrointestinal examination report, which was conducted by a physician assistant, failed to support an adverse opinion by any rationale. Therefore, this issue was remanded for a VA examination and nexus opinion on the nature and etiology of the Veteran's recurrent gastrointestinal disorder, with particular emphasis and instructions that this examination and opinion be undertaken by a physician. However, in January 2017, a VA examination and opinion on the Veteran's gastrointestinal disorder was undertaken by a physician assistant. In this VA examination report, the physician assistant opined that the Veteran's condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. Although the physician assistant provides a great deal of information to provide a rationale for her opinion, she however, failed to explain why the Veteran's treatment for gastroenteritis, during service in 1979, is not related to the Veteran's report of GERD/hiatal hernia, or constipation; failed to provide an alternative explanation or rationale for the cause of his current diagnosis of gastrointestinal disorder; and crucially, failed to account for the Veteran's lay statements about in-service symptoms and complaints. Rather, she concluded that there were no symptoms, complaints, or treatment for any gastrointestinal disorder in his service treatment records (STRs), other than treatment for gastroenteritis during service in 1979, which was determined to be viral in etiology, and commonly known as the stomach flu. Therefore, a remand is required for an adequate VA examination and opinion for his recurrent gastrointestinal disorder. Recurrent Head Trauma Residuals In the last remand in September 2016, the Board found that an April 2010 VA neurological examination report, which was conducted by a physician assistant, and a November 2015 psychiatric report, were inadequate because the opinions were based on an erroneous finding that the Veteran did not sustain a significant in-service head trauma. Therefore, this issue was remanded for a VA examination and nexus opinion on the nature and etiology of the Veteran's recurrent head trauma residuals. Among other instructions, the remand directives particularly emphasized that if no recurrent head trauma residuals, other than traumatic teeth numbers 8, 9 and 10 injury residuals are identified, the VA examiner should specifically state this fact. Additionally, the September 2016 remand also particularly emphasized that for purposes of rendering this opinion, the Veteran's in-service head trauma is to be conceded. Regardless, the January 2017 VA examinations for brain and spinal cord, headaches, and residuals of TBI, failed to render adequate opinions that were responsive to the September 2016 remand directives. Although the VA examiner opined that the Veteran's recurrent head trauma residuals are less likely than not incurred in or caused by his active service, she only focused on the subject of traumatic teeth numbers 8, 9 and 10 injury residuals, and failed to consider, discuss, or address the subject of whether the Veteran had recurrent head trauma residuals, other than traumatic teeth numbers 8, 9 and 10 injury residuals. See e.g. January 2017 VA Medical Opinion (finding that the Veteran's claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness; explaining, as a rationale, that based on the report of the Veteran and a review of available STRs, it is less likely than not the Veteran suffers from concussion/mild traumatic brain injury, headaches or other central nervous system disorder as a result of injuries to his teeth that occurred in service, on two occasions); there is no temporal relationship between his current reported symptoms and the events outlined in his medical history; and that the residuals he currently complains of could not be attributed to the injuries to his teeth that occurred on two occasions while in service); see also January 2017 VA Examination for Headaches (explaining that there are no records indicating that the Veteran suffered from a headache condition during his time in active duty or as a result of injuries to his teeth that occurred in 1979; there is no temporal relationship between the Veteran's time in active service and the injuries he sustained to his teeth during active service; and that therefore, it is less likely than not his headaches were incurred in or caused by his active duty service); see, too January 2017 VA Examination for Residuals of Traumatic Brain Injury (explaining that the residuals the Veteran's currently complains of would not be attributed to the injuries to his teeth that occurred in June 1979 and November 1979). Thus, given that there still remains the question of whether recurrent head trauma residuals, other than traumatic teeth numbers 8, 9 and 10 injury residuals, are identified, a remand is required for an adequate VA examination and opinion that is responsive to the Board's remand directives. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA gastroenterological examination to determine the nature and etiology of his recurrent gastrointestinal disorder and its relationship, if any, to active service. The VA examination MUST be conducted by a physician. The VA examiner/physician must be provided with a copy of this remand, must review the claims file, and must note that review in the report. All necessary tests and studies should be accomplished and all clinical findings reported in detail. The VA examiner must undertake the following: a. Opine as to whether it is as likely as not (50 percent probability or more) that any identified recurrent gastrointestinal disorder had its onset during active service; is etiologically related to the Veteran's in-service viral gastroenteritis and other gastrointestinal complaints; or otherwise originated during active service. b. Construe all disclosures and statements from the Veteran as competent lay statements, unless the VA examiner has good reason to believe that the information being provided by the Veteran cannot be reliable. If it is determined that there is another likely etiology for the Veteran's gastrointestinal disorder, please indicate and provide a clear, detailed explanation. A detailed explanation is requested for all opinions provided. If an opinion cannot be provided without resort to speculation, the VA examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be rendered. 2. Schedule the Veteran for a VA neurological examination, to be conducted by a specialist physician who is authorized to conduct a VA traumatic brain injury examination (a psychiatrist, physiatrist, neurosurgeon or neurologist ) to determine the nature and etiology of his claimed recurrent head trauma residuals. If no recurrent head trauma residuals, other than traumatic teeth number 8, 9, and 10 injury residuals are identified, please specifically state that fact. a. Opine as to whether it is as likely as not (50 percent probability or more) that any identified recurrent head trauma residual had its onset during active service; is etiologically related to the Veteran's in-service head injuries; or otherwise incurred during active service. b. For purposes of rendering the requested opinion, the Veteran's in-service head trauma MUST be conceded. c. Construe all disclosures and statements from the Veteran as competent lay statements, unless the VA examiner has good reason to believe that the information being provided by the Veteran cannot be reliable. If it is determined that there is another likely etiology for the Veteran's recurrent head trauma residuals, please indicate and provide a clear, detailed explanation. A detailed explanation is requested for all opinions provided. 3. After ensuring that the above-mentioned actions have been undertaken, readjudicate the claims. 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. §§ 5109B, 7112 (West 2014). _________________________________________________ BRADLEY W. HENNINGS 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).