Citation Nr: 1804756 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-21 277 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a gastrointestinal disability, to include gastroesophageal reflux disease (GERD), diverticulitis, and Crohn's disease. 2. Entitlement to service connection for a lumbar spine disability. 3. Entitlement to service connection for a cervical spine disability. 4. Entitlement to service connection for a bilateral knee disability. 5. Entitlement to service connection for a bilateral foot/ankle disability. 6. Entitlement to service connection for sleep disturbances. 7. Entitlement to service connection for severe cardiomyopathy. 8. Entitlement to service connection for weakness and dizziness. 9. Entitlement to service connection for asthma. 10. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and depression. REPRESENTATION The Veteran represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Kim, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1982 to June 1985. He subsequently served in the Army Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2011 and November 2014 decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In April 2017, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. Following the hearing, the Veteran submitted additional evidence-a June 2017 Disability Benefits Questionnaire (DBQ) report containing an evaluation of heart conditions. As regards the characterization of some of the issues on appeal, the RO originally adjudicated the Veteran's claim of entitlement to service connection for an acquired psychiatric disability as a claim for PTSD. As the clinical evidence of record contains indications of other psychiatric diagnoses, including depression, see December 2012 VA treatment note, the Board has broadened the issue accordingly. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Likewise, the RO initially adjudicated the service connection claim for a respiratory disability as a claim for asthma, but given that the clinical records indicate other respiratory diagnoses, including bronchitis, see August 2011 private treatment note, the issue has also been broadened accordingly. See id. In addition, the Veteran's claim of entitlement for service connection for a gastrointestinal disability was originally claimed as separate claims for GERD and for diverticulitis/Crohn's disease. For clarity, the Board has recharacterized those issues on appeal a service connection claim for a gastrointestinal disability, to include GERD, diverticulitis, and Crohn's disease. Additional evidence, to include the above-referenced June 2017 DBQ report for heart conditions as well as an August 2016 statement, was added to the record after the issuance of April 2014 and July 2016 statements of the case. Regardless, as both of the Veteran's substantive appeals addressing the present issues were received after February 2, 2013, a waiver is not necessary. See section 501 of the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law (PL) 112-154. Therefore, the Board may properly consider such evidence. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, a 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 (West 2014); 38 C.F.R. § 3.159 (2017). Gastrointestinal Disability The Veteran contends that he has a gastrointestinal disability, to include GERD, diverticulitis, and Crohn's disease, due to service. He has reported that he experienced digestive symptoms, including "bloody stools" and reflux symptoms during service. See April 2017 Hearing Tr. at 26, 32. A July 1982 enlistment examination report documents a normal finding referable to the claimed gastrointestinal disability. In a June 1985 service screening note for acute medical care, the treating physician transcribed the Veteran's complaint of "sharp" "stomach pain [for] 2 days . . . [in the] lower R region." Post-service clinical records contain assessments of Crohn's disease and diverticulitis. See January and May 2010 private treatment notes. To date, the Veteran has not undergone a VA examination for the claimed gastrointestinal disability. Given his current diagnoses, and his reports as to the onset and continuity of gastrointestinal symptomatology since service, a VA examination is necessary to determine whether his current diagnoses are due to service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Respiratory Disability The Veteran argues that he had a respiratory disability, to include asthma, as a child and that such condition was aggravated during service. See April 2017 Hearing Tr. at 16. The July 1982 enlistment examination report reflects normal findings referable to the claimed respiratory disability. In a May 1985 service screening note for acute medical care, the treating physician noted that the Veteran was "short of breath when . . . running [and] working" and observed "wheezing." An assessment of asthma was provided at the time. While a June 1985 separation examination report note a normal finding for lungs, in the accompanying report of medical history, the Veteran answered affirmatively for shortness of breath. Post-service clinical records reflect diagnoses of asthma and bronchitis. See August 2011 private treatment note. The Board observes that, as no respiratory condition was noted in the July 1982 enlistment examination report, the presumption of soundness attaches, which may be rebutted only by clear and unmistakable evidence that the Veteran's disability was both pre-existing and not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 C.F.R. § 3.304 (b) (2017). To date, the Veteran has not undergone a VA examination for the claimed respiratory disability. Given his current diagnoses and his reports as to aggravation of respiratory symptomatology during service, a VA examination is necessary to determine whether there is clear and unmistakable evidence that the claimed disability pre-existed service and was not aggravated during service. McLendon v. Nicholson, 20 Vet. App. at 79. Lumbar Spine, Cervical Spine, Bilateral Knee, and Bilateral Foot/Ankle Disabilities With regard to the service connection claims for orthopedic disabilities, namely for lumbar spine, cervical spine, bilateral knee, and bilateral foot/ankle disabilities, the Veteran contends that such are related to performing physical duties as a motor transport operator in service. Specifically, he reports that "[o]n several occasions, [he] traveled long . . . distances [where his] knees cramped up for a long period of time" and that loading and unloading cargo was taxing on his joints. See April 2017 Hearing Tr. at 5, 10. The Veteran has reported additional joint injuries from an in-service car accident where the car "fell over on its side." See April 2017 Hearing Tr. at 12. Post-service clinical records reference the Veteran's medical history of degenerative joint disease. See private treatment records from Dr. A.K. dated through December 2011. To date, the Veteran has not undergone a VA examination for the claimed orthopedic disabilities. Given his competent reports as to the onset and continuity of lumbar spine, cervical spine, bilateral knee, and bilateral foot/ankle symptomatology, VA examinations are necessary to determine whether there are disabilities underlying the Veteran's reported symptoms and if so, whether they are related to service. See McLendon, 20 Vet. App. at 79. Sleep Disturbances and Cardiomyopathy The Veteran contends that he has sleep disturbances and cardiomyopathy due to service. With regard to the claimed sleep disturbances, he reports that he experienced episodes of sleep disturbances during service, which resulted in the currently diagnosed sleep apnea. See April 2017 Hearing Tr. at 17-18; August 2011 private treatment note. As for the claimed cardiomyopathy, the Veteran argues that such condition is due to "breathing problems" he experienced during service. See Hearing Tr. at 25. He has been diagnosed with severe cardiomyopathy since service. See August 2011 private treatment note. To date, the Veteran has not undergone a VA examination either claimed disability. Given his current diagnoses and his reports as to the onset and continuity of sleep disturbances and cardiologic symptomatology since service, VA examinations are necessary to determine whether his current diagnoses are due to service. See McLendon, 20 Vet. App. at 79. Acquired Psychiatric Disability The Veteran contends that he has an acquired psychiatric disability due to service. Specifically, he has reported that such resulted from driving along the Korean Demilitarized Zone (DMZ) where he feared that "[he] was being watched and targeted by infiltrators" based on reports of similar incidents during service. See August 2016 Statement from the Veteran. Service treatment records do not contain psychiatric complaints, treatments, or diagnoses during service. Personnel records document that the Veteran served in Korea from November 1982 to November 1983 as a "vehicle driver" assigned to "69th Trans Co." Post-service clinical records contain positive screening test results for PTSD and depression. See December 2012 VA treatment note. To date, the Veteran has not undergone a VA examination for the claimed acquired psychiatric disability. Given his competent reports as to the onset and continuity of psychiatric symptomatology since service, a VA examination is necessary to determine whether there is an acquired psychiatric disability underlying the reported symptoms and if so, whether such is related to service. See McLendon, 20 Vet. App. at 79. Further, while the AOJ issued a November 2014 formal finding of lack of information to corroborate the claimed PTSD stressor, the AOJ did not consider the Veteran's August 2016 statement describing the claimed stressor incident, which was submitted after the formal finding. Under these circumstances, the AOJ should attempt to verify the reported stressor by contacting the appropriate entity based on such additional information. Outstanding Records A remand is necessary to obtain outstanding clinical records identified by the Veteran. In a July 2011 notice of disagreement, the Veteran wrote that he received treatments for the claimed disabilities from Dr. A.K. "as earl[y] as late 1980's to present" as well as during his Reserves service period ending in 1988. Further, at the April 2017 hearing, the Veteran testified that he was being generally treated by Milledgeville Medical Facility located in Georgia. See April 2017 Hearing Tr. at 6. Also reported were outstanding psychiatric treatment records from Dr. Y. located in Seabrook, Georgia. See id. at 40. As the record does not contain such identified clinical records, on remand, the AOJ should undertake all efforts to obtain them. The AOJ should also associate any updated VA treatment records with the Veteran's claims file and request that he identify any other outstanding private treatment records referable to such claims. With regard to the remaining weakness/dizziness claim, after undertaking efforts to obtain the above-identified clinical records, the AOJ should undertake any other development deemed appropriate, to include obtaining a VA examination and/or medical opinion to determine whether the claimed disability is related to the Veteran's service. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with an opportunity to identify any outstanding private and VA treatment records relevant to his claims, to specifically include from Dr. A.K. from the late 1980's to present; Dr. Y. located in Seabrook, Georgia; and Milledgeville Medical Facility in Georgia. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained. 2. Contact any appropriate source to obtain the Veteran's Reserves service treatment records. All reasonable attempts should be made to obtain such records. If the records do not exist or further efforts to obtain them would be futile, issue a formal finding of unavailability and notify the Veteran and his representative in accordance with 38 C.F.R. § 3.159(e). 3. Contact the appropriate entity to verify the Veteran's alleged stressor. In this regard, the AOJ should review the file and prepare a summary of the Veteran's claimed stressor, specifically, that "during . . . transport of supplies up to and around the DMZ, [he was] informed by CID that [he was] being watched and targeted by infiltrators in all areas" and that "on several trip[s], [he] could see weapons being targeted at [his] trucks . . . ." Military personnel records also reflect that the Veteran served as a "vehicle driver" while assigned to "69th Trans Co." in Korea from November 1982 to November 1983. Any response should be documented in the record. 4. After completing the foregoing actions, schedule a VA examination to determine whether there is a relationship between the claimed gastrointestinal disability and his service. The examiner should review the record and note such review in the examination report. The examination should include a review of the Veteran's history and current complaints as well as a comprehensive evaluation and any tests deemed necessary. The examiner is asked to furnish an opinion with respect to the following questions: (A) The examiner should identify all diagnoses for gastrointestinal conditions present since the date of the claim (i.e. since August 2010), even if such diagnosis is currently asymptomatic or resolved during the pendency of the appeal. (B) For each diagnosis, the examiner should opine as to whether it is at least as likely as not (i.e. whether it is 50 percent or more probable) that any such disability is related to the Veteran's military service. In answering the above question, the examiner should specifically consider the June 1985 service screening note for acute medical care, in which the treating physician transcribed the Veteran's complaint of "sharp" "stomach pain [for] 2 days . . . [in the] lower R region." The examiner should consider all other evidence of record, including lay statements and medical records. The rationale for all opinions offered should be provided. A complete rationale should be given for all opinions and conclusions expressed. 5. Schedule the Veteran for a VA examination to address the nexus elements for the claimed respiratory disability. The claims file must be made available to the examiner for review and the examiner must state in the examination report that the claims file has been reviewed. All indicated tests should be performed. Following a review of the claims file, the reviewing examiner is requested to furnish an opinion with respect to the following questions: (A) The examiner should identify all respiratory diagnoses during pendency of the Veteran's claim (i.e. since August 2010), even if such diagnosis is currently asymptomatic or resolved during the pendency of the appeal. (B) For each diagnosis, the examiner should opine whether there is clear and unmistakable evidence (i.e. undebatable) that the disability pre-existed service. (C) For each diagnosis, if there is clear and unmistakable evidence that such disability pre-existed service, then the examiner is asked to opine as to whether there is clear and unmistakable evidence (i.e. undebatable) that the pre-existing disability did not undergo an increase in the underlying pathology during service, i.e., was not aggravated during service. (D) If there is no clear and unmistakable evidence that the claimed respiratory disability pre-existed the Veteran's service, then the examiner is asked whether it is at least as likely as not (50 percent or greater probability) that such is directly related to service. In rendering the above opinions, the examiner should consider all pertinent evidence, to include but not limited to the following: 1) the May 1985 service screening note for acute medical care, in which the treating physician noted that the Veteran was "short of breath when . . . running [and] working" and observed "wheezing." An assessment of asthma was provided at the time; and 2) the June 1985 report of medical history in which the Veteran answered affirmatively for shortness of breath. A complete rationale should be given for all opinions and conclusions expressed. 6. Schedule VA examinations to address the claimed lumbar spine, cervical spine, bilateral knee, and bilateral foot/ankle disabilities. The examiner should review the record and note such review in the examination report. The examination should also include a review of the Veteran's history and current complaints as well as a comprehensive evaluation and any tests deemed necessary. The examiner is asked to furnish an opinion with respect to the following questions: (A) The examiner should identify all diagnoses for lumbar spine, cervical spine, bilateral knee, and bilateral foot/ankle disabilities present since the date of the claim (i.e. since August 2010), even if such diagnoses are currently asymptomatic or resolved during the pendency of the appeal. (B) For each diagnosis, the examiner should opine as to whether it is at least as likely as not (i.e. whether it is 50 percent or more probable) that any such disability is related to the Veteran's military service, to include the reported physical assignments as a motor transport operator during service. The examiner is notified that the Veteran is competent to report the onset and continuity of symptomatology for the claimed disabilities. A complete rationale should be given for all opinions and conclusions expressed. 7. Schedule VA examinations to determine whether the claimed sleep disturbances and cardiomyopathy are due to service. The examiner should review the record and note such review in the examination report. The examination should include a review of the Veteran's history and current complaints as well as a comprehensive evaluation and any tests deemed necessary. The examiner is asked to furnish an opinion with respect to the following questions: (A) The examiner should identify all diagnoses pertinent to the claimed sleep disturbances and cardiomyopathy present since the date of the claim (i.e. since August 2010), even if such diagnosis is currently asymptomatic or resolved during the pendency of the appeal. (B) For each diagnosis, the examiner should opine as to whether it is at least as likely as not (i.e. whether it is 50 percent or more probable) that any such disability is related to the Veteran's military service. In answering the above question for the claimed cardiomyopathy, the examiner should specifically consider the May 1985 service screening note for acute medical care, in which the treating physician noted that the Veteran was "short of breath when . . . running [and] working" and observed "wheezing." The examiner should consider all other evidence of record, including lay statements and medical records. The rationale for all opinions offered should be provided. A complete rationale should be given for all opinions and conclusions expressed. 8. Schedule the Veteran for a VA examination with an appropriate professional to address the claimed acquired psychiatric disability. The claims file and a copy of this Remand must be made available to the examiner. Following a review of the claims file and examination of the Veteran, the examiner is requested to furnish an opinion with respect to the following questions: (A) The examiner should determine whether the Veteran currently has or has had PTSD at any point relevant to his claim (i.e. since October 2012) even if such diagnosis is currently asymptomatic or resolved during the pendency of the appeal. If PTSD is diagnosed at any point during the appeal period, the examiner must identify the specific stressor(s) underlying any PTSD diagnosis and comment upon the link between the current symptomatology and the Veteran's stressor(s) and must specifically address whether his identified stressor(s) are related to a fear of hostile military or terrorist activity; whether the identified stressor(s) are adequate to support a diagnosis of PTSD; and whether his symptoms are related to the identified stressor(s). (B) The examiner should identify all diagnoses of acquired psychiatric disorders other than PTSD, at any point relevant to his claim (i.e. since October 2012), even if such diagnosis is currently asymptomatic or resolved during the pendency of the appeal. (C) For each currently diagnosed acquired psychiatric disability other than PTSD, the examiner should offer an opinion as to whether it is at least as likely as not (i.e. 50 percent or greater probability) such acquired psychiatric disability was related to the Veteran's military service, to include the reported fear that he was being targeted while driving near the DMZ during his service in Korea. The examiner should consider all pertinent evidence of record, including lay statements and medical records. A complete rationale must be provided for all opinions. 9. After completing the above actions, to include 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. 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ MARJORIE A. AUER 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).