Citation Nr: 1804325 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 13-16 166 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a left knee disability, to include as secondary to service-connected right knee disability. 2. Entitlement to service connection for gastroesophageal reflux disease (GERD). 3. Entitlement to service connection for Barrett's esophagus disorder, to include as secondary to GERD. 4. Entitlement to service connection for gastritis. 5. Entitlement to service connection for a back disability. 6. Entitlement to service connection for pulmonary embolism. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. G. LeMoine, Associate Attorney INTRODUCTION The Veteran served on active duty from August 1993 to August 1997 and from April 2003 to September 2004, with additional service in the United States Marine Corps Reserves. These matters come before the Board of Veterans' Appeals (Board) on appeal of a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Veteran's claims file is currently under the jurisdiction of the St. Petersburg, Florida RO. This case was previously remanded by the Board in July 2016. The case has been returned to the Board for review. In Schroeder v. West, 212 F. 3d 1265, 1271 (Fed. Cir. 2000), the Federal Circuit held that VA has an obligation to explore all legal theories, including those unknown to the Veteran, by which the Veteran can obtain the benefit sought. Accordingly, the Veteran's appeal as to service connection for a left knee disability has been expanded to include entitlement to service connection under the theory of secondary service connection, and has been characterized as stated on the title page. See Roberson v. Principi, 251 F.3d 1378, 1384 (2001); Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004). In July 2016, the Board remanded the claim of entitlement to service connection for a right knee disability for additional development. A June 2017 rating decision granted entitlement to service connection for right knee shin splints (rated as right knee degenerative disease). As this represents a total grant of the benefit sought on appeal with respect to this issue, it is no longer before the Board. See Grantham v. Brown, 114 F. 3d 1156, 1159 (Fed. Cir. 1997). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board finds that the matters on appeal must be remanded for further development before a decision may be made on the merits. Review of the record shows that the Veteran served six days of inactive service prior to August 8, 1993, served on active duty in the Marine Corps from August 8, 1993 to August 8, 1997 then in the Marine Corps Reserves until April 2003, on active duty in the Air Force from April 14, 2003 to September 15, 2004 then in the Air National Guard until November 19, 2007. As the record does not specify when the Veteran was on active duty, ACDUTRA and INACDUTRA during his period of service in the Marine Corps Reserves from August 1997 to April 2003 and when he was on active duty, ACDUTRA and INACDUTRA during his period of service in the Air National Guard from September 16, 2004 to November 19, 2007 the Veteran's claim was remanded by the Board in July 2016. Specifically, the Board directed the AOJ to contact all appropriate sources in order to verify the specific dates when the Veteran was on active duty, ACDUTRA and INACDUTRA from August 1997 to April 2003 and from September 2004 to November 2007. In August 2016, September 2016 and October 2016 the AOJ sent a DFAS pay records request to the Air Force Reserve for all records relating to the Veteran from August 1, 1997 to December 31, 2013. However, the record does not reflect that the AOJ sent a DFAS pay records request to the Marine Corps Reserve. A remand by the Board confers on a Veteran, as a matter of law, the right to compliance with the remand order. If the Board proceeds with final disposition of an appeal, and the remand order has not been complied with, the Board errs in failing to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In this case, because the Board's July 2016 remand instructions have not been complied with in full with respect to verifying the specific dates when the Veteran was on active duty, ACDUTRA, and/or INACDUTRA from August 1997 to April 2003 while a member of the Marine Corps Reserve, the Veteran's claim must be remanded for further development. Left Knee Disability In its July 2016 remand, the Board directed the AOJ to obtain an examination to determine the etiology of the Veteran's left knee disability. Specifically, the Board asked that the VA examiner provide an opinion as to whether any knee disability manifested in service or is otherwise causally or etiologically related to his active service. On remand, the Veteran was provided a VA examination in March 2017. The VA examiner noted the Veteran had left leg shin splints. The VA examiner further noted that the Veteran was diagnosed with right knee degenerative changes but not left knee degenerative changes. The VA examiner opined that it is less likely than not that the Veteran's left knee degenerative changes incurred in or was the result of service. The Board finds that the March 2017 VA examination report to be inadequate for decision making purposes. The March 2017 VA examination report is internally inconsistent. The VA examiner stated that the Veteran was not diagnosed with degenerative changes of the left knee, but then provided an opinion that his left knee degenerative changes are less likely than not incurred in or the result of his military service. A review of the relevant evidence of record reveals that the Veteran was diagnosed with mild degenerative changes at a November 2015 examination. As the Veteran had a diagnosis of degenerative changes in the left knee during the appeal period it will be considered a current disability even if it has since resolved. See McClain v. Nicholson, 21 Vet. App. 319 (2007). Additionally, the VA examiner noted the Veteran's diagnosis of left knee shin splints. However, the examiner did not provide an opinion as to whether the Veteran's left knee shin splints manifested in service or are otherwise causally or etiologically related to his active service as directed by the July 2016 Board remand. Accordingly, the March 2017 VA examiner's opinion is inadequate for decision-making purposes. See Barr v. Nicholson, 21 Vet. App. 302, 312 (2007). Moreover, it does not substantially complete the July 2016 Board remand directives. See Stegall, 11 Vet. App. at 271 D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Board remand). Therefore, the claim must be remanded so that the Veteran may be provided a VA addendum opinion or, if necessary, another VA examination. As noted above, a June 2017 rating decision granted entitlement to service connection for a right knee disability. In the November 2017 Appellant's Brief, the Veteran's representative contended that the Veteran's left knee disability is secondary to his service-connected right knee disability. On remand, the VA examiner must provide an opinion as to whether the Veteran's left knee disability is either caused or aggravated by his service-connected right knee disability. See 38 C.F.R. § 3.310 (2017); Allen v. Brown, 7 Vet. App. 439 (1995). GERD Relating to the Veteran's claim for entitlement to service connection for GERD the Veteran was provided a VA examination in March 2017. The AOJ asked the VA examiner to provide an opinion as to whether the Veteran has a current diagnosis of GERD that is at least as likely as not incurred in or caused by his active service. The VA examination report does not provide a diagnosis of GERD. However, the VA examiner opined that the "veteran did not have GERD at least up until the time of this procedure." Thus, it is unclear whether the Veteran has a current diagnosis of GERD. In addition, the VA examiner did not address the Veteran's contentions the he was first diagnosed with GERD during his active service and continued to have GERD after his separation from active service. Thus, the Board finds that the March 2017 VA examiner's opinion is inadequate for decision-making purposes, and that the issue must be remanded so that an addendum opinion may be obtained. See Barr, 21 Vet. App. at 312. Barrett's Esophagus Disorder In its July 2016 remand, the Board directed the AOJ to obtain an examination to determine the etiology of the Veteran's Barrett's esophagus disorder. Specifically, the Board asked that the VA examiner provide an opinion as to whether any Barrett's esophagus disorder manifested in or is otherwise causally or etiologically related to an injury or event during his active service, or whether his Barrett's esophagus disorder is caused or aggravated by his GERD. In addition, the July 2016 remand directed that if any Barrett's esophagus disorder symptomatology is not attributable to a known clinical diagnosis, the VA examiner should opine as to whether any symptoms are due to an undiagnosed illness or medically unexplained chronic multi-symptoms illness resulting from service in Southwest Asia during the Persian Gulf War. On remand, the Veteran was provided a VA examination in March 2017. The VA examiner noted that the Veteran has a diagnosis of Barrett's esophagus disorder. The VA examiner opined that the "veteran did not have a diagnosis of GERD up until this time and subsequently his Barrett's esophagus is not related to GERD." The VA examiner did not provide an opinion as to whether the Veteran's diagnosed Barret's esophagus disorder is directly related to his active service, whether his Barrett's esophagus disorder is aggravated by his GERD, or whether any symptoms are due to an undiagnosed illness or medically unexplained chronic multi-symptoms illness resulting from service in Southwest Asia during the Persian Gulf War. Accordingly, the March 2017 VA examiner's opinion is inadequate for decision-making purposes. See Barr, 21 Vet. App. at 312. Moreover, it does not substantially complete the January 2016 Board remand directives. See Stegall, 11 Vet. App. at 271; D'Aries, 22 Vet. App. at 105. Gastritis In its July 2016 remand, the Board directed the AOJ to obtain an examination to determine the etiology of any disorder for gastritis that might exist. In addition, the VA examiner was directed to opine whether any symptoms are due to an undiagnosed illness or medically unexplained chronic multi-symptoms illness resulting from service in Southwest Asia during the Persian Gulf War. The Veteran was not provided a VA examination relating to his claim for entitlement to service connection for gastritis as directed by the July 2016 Board remand. As such, the claim must be remanded in order for the Veteran to be afforded a VA examination. See Stegall, 11 Vet. App. at 271. Back Disability In its July 2016 remand, the Board directed the AOJ to obtain an examination to determine the etiology of any back disorder, to include arthritis that may exist. In addition, the VA examiner was directed to opine whether any symptoms are due to an undiagnosed illness or medically unexplained chronic multi-symptoms illness resulting from service in Southwest Asia during the Persian Gulf War. On remand the Veteran was provided a VA examination in March 2017. The VA examiner noted that the Veteran has a diagnosis of degenerative arthritis of the spine and a lumbosacral strain. However, when providing an opinion as to whether the Veteran's current back disability was incurred in or caused by the claimed in-service injury, event or illness the VA examiner merely stated that the Veteran's back disability is less likely than not a result of a motor vehicle accident the Veteran suffered during service. The VA examiner did not address the Veteran's contentions the he has had continuous back pain since active service. In addition, the VA examiner did not opine as to whether any symptoms are due to an undiagnosed illness or medically unexplained chronic multi-symptoms illness resulting from service in Southwest Asia during the Persian Gulf War as directed by the July 2016 Board remand. Accordingly, the March 2017 VA examiner's opinion is inadequate for decision-making purposes. See Barr, 21 Vet. App. at 312. Moreover, it does not substantially complete the July 2016 Board remand directives. See Stegall, 11 Vet. App. at 271. Therefore, the issue must be remanded so that the Veteran may be provided a VA addendum opinion or, if necessary, another VA examination. Pulmonary Embolism In its July 2016 remand, the Board directed the AOJ to obtain an examination to determine the etiology of the Veteran's pulmonary embolism. At the March 2017 examination, the VA examiner noted the Veteran's diagnosis of pulmonary embolism in 2006. In addition, the VA examiner noted that the Veteran complained of shortness of breath and chest pain that began during his active service and continued after his separation from active service. The VA examiner opined that it is less likely than not that a pulmonary embolism incurred in or was caused by the Veteran's active service. As rationale, the VA examiner noted that the Veteran had several negative CT angiography tests since active service. However, the VA examiner did not address the Veteran's claims of continued shortness of breath and chest pain since his active service. Accordingly, the March 2017 VA examiner's opinion is inadequate for decision-making purposes. See Barr, 21 Vet. App. at 312. Accordingly, the case is REMANDED for the following action: 1. Contact all appropriate sources in order to verify the specific dates when the Veteran was on active duty, ACDUTRA, and INACDUTRA from August 1997 to April 2003 as a member of the Marine Corps Reserve. The RO should request the Veteran's complete service personnel records, including any line of duty determinations. All efforts to obtain the evidence must be documented in the claims file. If, after all procedurally appropriate actions to locate and secure the records have been exhausted, and it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile, make a formal finding to that effect. The RO must also provide the Veteran with proper written notice that includes (a) the identity of the specific records that cannot be obtained, (b) an explanation as to the efforts that were made to obtain those records, (c) a description of any further action to be taken by VA with respect to the claim, and (d) notice that the Veteran is ultimately responsible for providing the evidence. 38 C.F.R. § 3.159 (e) (2017). 2. After the above development, forward the record and a copy of this remand to the examiner who conducted the March 2017 VA examination, or if the examiner is unavailable, another suitably qualified examiner, for completion of addendum opinions. If the examiner determines that another in-person examination of the Veteran is required to provide the below-requested information, then such an examination should be scheduled. Following review of the record, the examiner should express an opinion as to: a) Whether it is at least as likely as not (50 percent or greater probability) that any left knee disability, to include, but not limited to, shin splints and degenerative changes, is related to the Veteran's active service. In providing the above opinion, the examiner should be mindful that even if a left knee disability has resolved, an opinion is still required regarding the etiology of the diagnosed disabilities proximate to, or during, the appeal. See McClain v. Nicholson, 21 Vet. App. 319 (2007). b) If not, whether it is at least as likely as not (50 percent or greater probability) that any left knee disability, to include, but not limited to, shin splints and degenerative changes, is proximately due to or the result of the Veteran's service-connected disabilities, specifically to include his service-connected right knee disability. c) If not, whether it is at least as likely as not (50 percent or greater probability) that any left knee disability, to include, but not limited to, shin splints and degenerative changes, is aggravated by the Veteran's service-connected disabilities, specifically to include his service-connected right knee disability. "Aggravation" is defined as a worsening beyond the natural progression of the disease. The examiner must indicate that the record was reviewed. A complete rationale must be provided for each opinion given. 3. After completion of the first remand directive, forward the record and a copy of this remand to the examiner who conducted the March 2017 VA examination, or if the examiner is unavailable, another suitably qualified examiner, for completion of addendum opinions. If the examiner determines that another in-person examination of the Veteran is required to provide the below-requested information, then such an examination should be scheduled. Following review of the record, the examiner should express an opinion as to: a) Whether the Veteran had a diagnosis of an upper digestive system disability, including, but not limited to GERD, during or in proximity to the appeal period. b) If so, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current upper digestive disability had its onset during the Veteran's active service or is otherwise causally or etiologically related to his active service. c) If the Veteran does not have a diagnosis of an upper digestive system disability, to include but not limited to GERD, whether it is at least as likely as not these symptoms are due to an undiagnosed illness or medically unexplained chronic multi-symptom illness resulting from service in Southwest Asia during the Persian Gulf War. If so, the examiner should also comment on the severity of the symptomatology and report all signs and symptoms necessary for evaluating the illness under the rating criteria. The examiner should indicate that the record was reviewed. A complete rationale must be provided for all opinions given. The examiner should address the Veteran's contentions that he was first diagnosed with GERD during his active service. 4. After completion of the first remand directive, forward the record and a copy of this remand to the examiner who conducted the March 2017 VA examination, or if the examiner is unavailable, another suitably qualified examiner, for completion of addendum opinions. If the examiner determines that another in-person examination of the Veteran is required to provide the below-requested information, then such an examination should be scheduled. Following review of the record, the examiner should express an opinion as to: a) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's Barrett's esophagus disorder is related to his active service. b) If not, whether it is at least as likely as not (50 percent or greater probability) that the Veteran's Barrett's esophagus disorder is proximately due to or the result of GERD. c) If not, whether it is at least as likely as not (50 percent or greater probability) that the Veteran's Barrett's esophagus disorder is aggravated by GERD. "Aggravation" is defined as a worsening beyond the natural progression of the disease. If the Veteran has any symptomatology for Barrett's esophagus disorder that is not attributable to a known clinical diagnosis, the examiner should opine as to: d) Whether it is at least as likely as not the reported symptoms of an esophagus disorder are due to an undiagnosed illness or medically unexplained chronic multi-symptom illness resulting from service in Southwest Asia during the Persian Gulf War. If so, the examiner should also comment on the severity of the symptomatology and report all signs and symptoms necessary for evaluating the illness under the rating criteria. The examiner must indicate that the record was reviewed. A complete rationale must be provided for each opinion given. 5. After completion of the first remand directive, schedule the Veteran for a VA examination to determine the nature and etiology of any gastritis diagnosed during or in proximity to the appeal period. Provide a copy of this remand and the record to the examiner for review. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner must address the following: a) Provide an opinion as to whether the Veteran had a diagnosis of gastritis during or in proximity to the appeal period. b) If so, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any gastritis had its onset during the Veteran's active service or is otherwise causally or etiologically related to his active service. c) If the Veteran does not have a diagnosis of gastritis, whether it is at least as likely as not the gastric symptoms are due to an undiagnosed illness or medically unexplained chronic multi-symptom illness resulting from service in Southwest Asia during the Persian Gulf War. If so, the examiner should also comment on the severity of the symptomatology and report all signs and symptoms necessary for evaluating the illness under the rating criteria. 6. After completion of the first remand directive, forward the record and a copy of this remand to the examiner who conducted the March 2017 VA examination, or if the examiner is unavailable, another suitably qualified examiner, for completion of addendum opinions. If the examiner determines that another in-person examination of the Veteran is required to provide the below-requested information, then such an examination should be scheduled. Following review of the record, the examiner should express an opinion as to: a) Provide an opinion as to whether the Veteran had a diagnosis of a back disability, including, but not limited to arthritis, during or in proximity to the appeal period. b) If so, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed back disability had its onset during the Veteran's active service or is otherwise causally or etiologically related to his active service. c) If no diagnosis is provided for the back symptoms, whether any symptoms are due to an undiagnosed illness or medically unexplained chronic multi-symptoms illness resulting from service in Southwest Asia during the Persian Gulf War. The examiner should indicate that the record was reviewed. A complete rationale must be provided for all opinions given. The examiner should address the Veteran's contentions that he was first diagnosed with a back disability during active service and continued to have a back disability since his separation from active service. 7. After completion of the first remand directive, forward the record and a copy of this remand to the examiner who conducted the March 2017 VA examination, or if the examiner is unavailable, another suitably qualified examiner, for completion of addendum opinions. If the examiner determines that another in-person examination of the Veteran is required to provide the below-requested information, then such an examination should be scheduled. Following review of the record, the examiner should express an opinion as to: a) Whether the Veteran had a diagnosis of pulmonary embolism during or in proximity to the appeal period. b) If so, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any pulmonary embolism had its onset during the Veteran's active service or is otherwise causally or etiologically related to his active service. c) If no diagnosis is provided for the pulmonary complaints, whether any symptoms are due to an undiagnosed illness or medically unexplained chronic multi-symptoms illness resulting from service in Southwest Asia during the Persian Gulf War. The examiner should indicate that the record was reviewed. A complete rationale must be provided for all opinions given. The examiner should address the Veteran's contentions that he has suffered from shortness of breath and chest pain since his active service. 8. After completion of the above, review the expanded record, including the evidence entered since the most recent supplemental statement of the case, and determine whether service connection may be granted. If any benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. A reasonable period should be allowed for response before the appeal is returned to the Board. 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 (2012). _________________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).