Citation Nr: 1804374 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 13-05 315 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for a stomach disability, claimed as stomach polyps, to include as a result of exposure to drinking water at Camp Lejeune. 2. Entitlement to a compensable disability rating for duodenal ulcer. 3. Entitlement to a disability rating in excess of 10 percent for residuals of a right forearm injury. 4. Entitlement to a total disability rating based on individual unemployability (TDIU), due to service connected disabilities. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney ATTORNEY FOR THE BOARD G. Fraser, Associate Counsel INTRODUCTION The Veteran had active service from December 1972 to September 1976. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. When this case was most recently before the Board in August 2015 the above issues were remanded for additional development. The case has now been returned to the Board for further appellate review. REMAND Although additional delay is unfortunate, the Board is of the opinion that additional development is required before the remaining claims on appeal are decided. Service Connection Claim Initially, the Board notes that VA must provide a medical examination or obtain a medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, disease or injury is a low threshold. McLendon, 20 Vet. App. at 83. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In this case, the evidence indicates the Veteran has experienced a lengthy history of stomach polyps. He asserts his stomach disorder is the result of either his exposure to contaminated drinking water at Camp Lejeune, or alternatively was caused or aggravated by his duodenal ulcer disability. The Veteran was scheduled for an examination in March 2014 to assess his claimed disability, and also to determine whether a sufficient nexus exists to establish a service connection for the claimed disorder. Unfortunately, it appears the Veteran and the VA examiner experienced a somewhat antagonistic encounter. Specifically, the Veteran informed the examiner that he believed the examiner would likely lie in his examination report. Following his declaration, the examiner terminated the examination, finding it would be difficult for him to conduct his examination if the Veteran held this belief. The Board is uncertain how or why the examiner was unable to conduct his examination, and has even greater difficulty understanding why the examiner was unable to provide the requested nexus opinion. Conversely, the Board also believes respect and cooperation is to be expected from a Veteran in the course of a VA examination. Indeed, VA's duty to assist a Veteran in developing the facts and evidence pertinent to his or her claim is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). By way of an October 2017 brief, the Veteran's representative has requested a new examination and medical opinion. An examination and medical opinion is required in this case in order to establish service connection, as the evidence of record is not currently sufficient to do so; however, the Board finds that noncompliance by a veteran during a VA examination is tantamount to a failure to report. See 38 C.F.R. § 3.655. In sum, the Board finds a new VA examination should be scheduled with an examiner other than the March 2014 examiner, with the expectation of cooperation by the Veteran. Increased Rating and TDIU Claims Next, the Board notes that in the October 2017 brief, the Veteran's representative suggested a VA examination was necessary in order to determine how the combined effects of the Veteran's disabilities affect his ability to obtain and maintain substantially gainful employment. The Board agrees. With respect to the Veteran's residuals of a right forearm injury, the Board first observes that the Veteran's disability is singularly evaluated as a painful scar. The Veteran has asserted that he experiences greater impairment resulting from his in-service forearm injury. In this case the Veteran most recently underwent a VA examination to assess his residuals of a right forearm injury in September 2014. In the course of his examination, the examiner noted a forearm muscle injury, but curiously failed to provide a muscle injuries disability benefit questionnaire. In addition, during examination the Veteran reported experiencing right elbow pain as a result of his fall from a horse in service; however, the examiner did not state whether the Veteran has a current elbow disability. Based on the foregoing, the Board finds new examinations and medical opinions are required prior to final adjudication of this matter. Finally, with regard to the Veteran's duodenal ulcer the Veteran's representative has asserted his disability is worse than currently evaluated. He also most recently underwent a VA examination to assess this disability in September 2014. As there is evidence of a worsening of the disability since the last VA examination, which was performed several years ago, the claim must be remanded for a new examination to determine the current severity of the disability. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). On remand, relevant ongoing medical records should also be obtained. 38 U.S.C. § 5103A(c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, this case is REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's remaining issue on appeal, to specifically include any more recent treatment records related to the claimed disability. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Then afford the Veteran a VA examination by an examiner with sufficient expertise to determine the current severity of his service-connected right elbow injury residuals and duodenal ulcer. The electronic records should be made available to and reviewed by the examiner. Ensure the examiner provides all information required for rating purposes. With respect to the Veteran's right forearm injury residuals, the Veteran should be afforded a VA scars, muscle injuries, and elbow and forearm examination. Following the elbow and forearm examination, the examiner should comment on whether the Veteran has a current right elbow disability, which is as likely as not (a 50 percent probability or greater) consequentially related to his right forearm injury in service. 3. Also, afford the Veteran a VA examination, by an examiner who has not previously examined the Veteran, to address the etiology of the Veteran's claimed stomach disability. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed. Following a review of the relevant records and lay statements, the examiner should state an opinion with respect to whether any diagnosed stomach disability, to specifically include stomach polyps, at least as likely as not (a 50 percent probability or greater): a) originated during his period of active service or is otherwise etiologically related to his active service, to include his exposure to contaminated water at Camp Lejeune; b) was caused by his duodenal ulcer disability; or c) was permanently worsened by his duodenal ulcer disability. The examiner must provide a complete rationale for any proffered opinion. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 4. Then, a medical opinion should be obtained from an examiner with sufficient expertise to comment on the occupational effects caused by the Veteran's service-connected disabilities. The examiner should provide concrete examples of functional impairments caused by the Veteran's service-connected conditions, to include the medications taken for each disability. The types of impairments the examiner should address include, but are not limited to, walking, sitting, lifting and standing limitations, impaired ability to interact socially, as well as problems with memory and concentration. The examiner must discuss and consider the Veteran's competent lay statements. In addition, the examiner should comment on whether there is a 50 percent or better probability that the Veteran's service-connected disabilities, either alone or in concert, are sufficiently disabling to preclude him from obtaining or maintaining any form of substantially gainful employment consistent with his education and occupational background. 5. Finally, undertake any other indicated development, to include consideration of whether the case should be referred to the Director of the Compensation Service for extra-schedular TDIU consideration, if appropriate. Then readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ T. REYNOLDS 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).