Citation Nr: 1804342 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 14-23 194 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a lung disorder, to include as due to exposure to herbicide agents or pursuant to 38 U.S.C. § 1117. 2. Entitlement to service connection for sleep apnea, to include as due to exposure to herbicide agents. 3. Entitlement to service connection for abdominal aortic aneurysm, to include as due to exposure to herbicide agents. 4. Entitlement to service connection for hernia, to include as due to exposure to herbicide agents. 5. Entitlement to service connection for acid reflux, to include as due to exposure to herbicide agents or pursuant to 38 U.S.C. § 1117. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Kate Sosna, Associate Counsel INTRODUCTION The Veteran served from April 1965 to July 2001 on both active duty and in the National Guard. In October 2016, the Board found that the Veteran had active duty service from May 1986 to July 2001. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in September 2012 by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2015 and October 2016, the Board remanded this matter for additional development and it now returns for further appellate review. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, another remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). In this regard, as discussed below, the examinations obtained in May 2017 pursuant to the October 2016 remand are inadequate for appellate review. Regarding the Veteran's claim for service connection for a lung disorder, the examiner failed to explain why the Veteran's diagnosis of "groundglass opacity" did not constitute a lung disorder as requested in the October 2016 remand. Additionally, the examiner stated there was no evidence of an in-service lung disorder, apparently ignoring the Veteran's lay statements asserting in-service treatment and the December 2011 statement from his comrade, G.J., who also noted the Veteran's in-service treatment. Furthermore, the examiner failed to identify any objective indications of the symptoms and/or abnormalities associated with the Veteran's alleged lung disorder. In this regard, the Veteran has documented service in Southwest Asia and has reported symptoms referable to his respiratory and gastrointestinal systems. Thus, the Board finds an additional examination is warranted to determine the nature and etiology of the Veteran's claimed lung disorder, to include consideration of the provisions of 38 U.S.C. § 1117. Turning to the Veteran's claim for service connection for sleep apnea, the examiner incorrectly stated the Veteran had not undergone a polysomnograph test when the record shows one was conducted in March 2010. Thus, the examiner's opinion was based, at least in part, on an inaccurate premise and carries no probative weight. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) ("An opinion based upon an inaccurate factual premise has no probative value.). Additionally, the examiner's failure to identify a test in the record suggests he may not have reviewed the full record. Thus, a new examination is warranted during which the examiner fully reviews the record and the Veteran's subjective reports. With regard to the Veteran's claim for service connection for an abdominal aortic aneurysm, the Board's October 2016 remand instructed the examiner to discuss his January 2012 diagnosis of a right common iliac artery aneurysm and the relationship such diagnosis might have with his in-service abdominal aortic aneurysm; unfortunately, the examiner offered no such discussion. Similarly, the examiner failed to provide any discussion of the Veteran's claimed hernia. Thus, a new examination is warranted to determine the nature and etiology of any aneurysms or hernias that have existed during the pendency of the claim. Finally, with regard to the claim for service connection for acid reflux, the examiner stated the Veteran does not have a diagnosed esophageal disease and is not treated for such despite the fact that private treatment records from February 2010 confirm the Veteran's diagnosis of gastroesophageal reflux disease (GERD) and his use of Nexium as well as his documented in-service use of Prilosec. Thus, it is again apparent the examiner did not fully review the record or the Veteran's lay reports. Additionally, to the extent a competent examiner states the Veteran has not suffered from an esophageal disorder during the appeal, the examiner should also consider the provisions of 38 U.S.C. § 1117 in light of the Veteran's confirmed service in Southwest Asia during the Persian Gulf war. Thus, a new examination is also warranted for this disorder. As to all of the opinions, the examiner appears to have based such, in part, on the lack of documentation of the disorders or treatment thereof in the Veteran's service treatment records (STRs) or in his VA treatment records. Notably, the Veteran's STRs have been deemed unavailable and the examiner is not permitted to draw any negative inference in relation to such. Furthermore, it appears from the record that the Veteran did not receive treatment from VA until recently and, as such, it is unreasonable for the examiner to find fault in a lack of information in such records. Notably, the Board has a duty to develop all reasonable theories of entitlement. In October 2016, the Board made a formal finding that the Veteran served in Vietnam. Thus, in association with the new opinions, the examiner should provide an opinion as to whether any of the Veteran's claimed disorders are related to his presumed in-service exposure to herbicide agents. Remand is also required for procurement of outstanding records. In this regard, in November 2015, the AOJ requested that the Veteran provide an Authorization to Disclose Information to the Department of Veterans Affairs (VA Form 21-4142) so that medical treatment records from Dr. S.K. and Dr. N.K. could be requested. In December 2015, the Veteran provided a completed VA Form 21-4142, but appears to have omitted the name of the treatment provider, apparently in reliance on the fact that the AOJ specifically cited to two physicians in the November 2015 request. In any event, the records were not requested and the authorization has since expired. Thus, remand is required to afford the Veteran another opportunity to provide a release to obtain his private treatment records. To the extent the Veteran has begun receiving treatment through VA, such records should also be obtained. Accordingly, the case is REMANDED for the following action: (Please note, 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 all outstanding VA treatment records. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. The AOJ should contact the Veteran and request that he provide an updated release form (VA Form 21-4142) authorizing VA to request copies of any treatment records from any previously unidentified private medical providers who have provided treatment for the claims in appellate status, to include Dr. S.K., Dr. N.K., Dr. H.L., Dr. B.A., and Dr. D.G. After receiving any necessary authorization forms, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. 3. The Veteran should be afforded appropriate VA examination to determine the nature and etiology of his claimed lung disorder, obstructive sleep apnea, abdominal aneurysm, hernia, and acid reflux. All indicated tests and studies should be undertaken. The claims file, including a complete copy of this remand, must be made available for review of the Veteran's pertinent medical history. The examiner is asked to furnish an opinion with respect to the following questions: (a) Identify all current lung diagnoses. The examiner should specifically discuss the February 2008 and May 2014 findings related to groundglass opacity and explain why such findings are or are not consistent with a current lung diagnosis. (b) For each diagnosed lung disorder, is it at least as likely as not (i.e., 50 percent or greater probability) that such disorder is related to the Veteran's military service, to include his and his comrade's credible reports of exposure to SCUD missiles and other hazardous chemicals and/or his acknowledged in-service exposure to herbicide agents? The examiner is advised that he/she may not base his/her opinion on the fact that the Veteran's STRs are not complete and the available records do not document in-service treatment for a lung disorder. (c) Is it at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's diagnosed obstructive sleep apnea is related to his military service, to include his acknowledged in-service exposure to herbicide agents? The examiner is advised that he/she may not base his/her opinion on the fact that the Veteran's STRs are not complete and the available records do not document in-service treatment for a sleep disorder. (d) Identify all current aneurysm diagnoses. The examiner should specifically discuss the January 2012 and April 2012 findings documenting the presence of a right common iliac artery aneurysm and explain why such findings are or are not consistent with a current aneurysm diagnosis. (e) For each diagnosed aneurysm disorder, is it at least as likely as not (i.e., 50 percent or greater probability) that such disorder is related to the Veteran's military service, to include the July 1992 surgery to repair an abdominal aortic aneurysm and/or his acknowledged in-service exposure to herbicide agents? (f) Identify all current hernia diagnoses. (g) For each diagnosed hernia disorder, is it at least as likely as not (i.e., 50 percent or greater probability) that such disorder is related to the Veteran's military service, to include the December 1993 surgery to repair an incisional hernia and/or his acknowledged in-service exposure to herbicide agents? (h) Identify all current esophageal disorders. The examiner should specifically discuss the February 2010 private treatment records documenting the Veteran's diagnosis of GERD and the use of Nexium. (i) For each diagnosed esophageal disorder, is it at least as likely as not (i.e., 50 percent or greater probability) that such disorder is related to the Veteran's military service, to include his April 1998, February 1999, and July 2001 reports of the use of Prilosec and/or his acknowledged in-service exposure to herbicide agents? (j) If the Veteran suffers from any symptoms (to include respiratory and/or gastrointestinal symptoms) that cannot be associated with known clinical diagnoses, the examiner should indicate whether the Veteran has objective indications of a chronic disability resulting from an undiagnosed illness, as established by history, physical examination, and laboratory tests, that has either (1) existed for 6 months or more, or (2) exhibited intermittent episodes of improvement and worsening over a 6-month period; or whether such symptoms represent a "medically unexplained chronic multisymptom illness." Such is defined as a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. While the examiner is free to cite to studies by the National Institute of Health or any medical treatises in rendering the opinion, the examiner's rationale cannot rely solely on the fact that VA has not included non-cancerous lung disorders, obstructive sleep apnea, aneurysm disorders, hernia disorders, or esophageal disorders in the list of diseases presumptively related to exposure to herbicide agents. In other words, the Board needs an opinion as to the likelihood that this Veteran's non-cancerous lung disorder, obstructive sleep apnea, aneurysm disorder, hernia disorder, and/or esophageal disorder, without regard to the conditions VA recognizes as being due to herbicide agents, are nevertheless at least as likely as not related to his exposure to herbicide agents in Vietnam. In offering any opinion, the examiner must consider the full record, to include the Veteran and his comrade's lay statements. The rationale for any opinion offered should be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ A. JAEGER 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).