Citation Nr: 18144989 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 06-07 701 DATE: October 25, 2018 REMANDED Entitlement to service connection for an autoimmune condition, to include as due to an undiagnosed Gulf War illness (UGWI) and/or exposures (chemical, drugs, and/or immunizations), is remanded. Entitlement to service connection for diverticulitis, to include as due to exposures (chemical, drugs, and/or immunizations), is remanded. Entitlement to service connection for a hiatal hernia with reflux, to include as due to exposures (chemical, drugs, and/or immunizations), is remanded. Entitlement to a rating in excess of 10 percent for irritable bowel syndrome (IBS) is remanded. Entitlement to a total disability rating based on unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had qualifying service from November 1979 to January 1980 and November 1985 to October 1991, including in Southwest Asia during the Persian Gulf War. In May 2011, the Board remanded, in pertinent part, the hiatal hernia with reflux, autoimmune condition, and TDIU issues. In June 2017, the Board remanded all the issues herein. For reasons discussed below, substantial compliance was not achieved. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Service Connection for an Autoimmune Condition The Veteran has reported in-service exposure to: (a) chemicals (sarin and soman nerve gas, smoke from oil fires, smoke or fumes from tent heaters, passive cigarette smoke, burning trash/feces, pesticides); (b) drugs (pyridostigmine bromide); and (c) immunizations (anthrax and botulism). See March 1997 Persian Gulf Registry Code Sheet by Dr. RHS; June 2005 Statement; July 2008 Email Correspondence; September 2008 Email Correspondence; June 2010 VA Form 9s; June 2017 Board Remand; September 2018 Brief. He generally contends that his autoimmune condition, diverticulitis, and hiatal hernia with reflux were caused or aggravated beyond natural progression by at least one of these exposures. Id. The agency of original jurisdiction (AOJ) has not attempted to corroborate these exposures, as the claims file lacks such requests to the Joint Services Records Research Center (JSSRC) or another pertinent entity. Of note, a December 2000 letter from the Office of the Secretary of Defense informed the Veteran that, in March 1991, he may have been exposed to “a very low level of chemical agent” resulting from the demolition of munitions at Khamisiyah, Iraq; no specifics about the type of chemical agent were provided. It is imperative for the AOJ to attempt to corroborate these exposures so that examiners’ opinions are based on accurate factual premises. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). After completing the above, it is also imperative for the AOJ to seek further medical clarification for all disabilities herein because the August 2018 examinations and opinions were grossly inadequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In its June 2017 Remand, the Board found prior findings and opinions to be inadequate for all disabilities herein. Regarding the autoimmune condition, the Board found the March 2015 VA opinion inadequate and requested that an examiner: (a) clarify diagnosis; (b) address whether any diagnosed autoimmune disability is related to service-connected livedo reticularis; (c) address whether Sneddon’s syndrome is a congenital disease or defect, is an acquired disability that underwent a permanent aggravation during service, or was subject to a superimposed disease or injury for which service connection is warranted for the resultant disability; and (d) address the exposure contentions. Regarding diverticulitis, the Board found the June 2010 VA opinion inadequate and requested that an examiner: (a) address the exposure contentions; and (b) explain the finding that the Veteran did not meet the Rome III diagnostic criteria for diverticulitis, in light of an October 2007 test result indicating diverticulosis. Regarding hiatal hernia with reflux, the Board found the March 2015 VA opinion inadequate and requested that an examiner: (a) address the exposure contentions; and (b) consider any pertinent disability during the appeal period (since January 2004), even if the disability has resolved. Regarding IBS, the Board found that a new examination was required to assess the severity after the Veteran’s reports in May 2014 VA treatment records and during the September 2014 VA Gulf War Examination suggested that the condition had worsened since the June 2010 VA Digestive Conditions Examination. TDIU was found to be inextricably intertwined with the other remanded issues and was remanded concurrently. Substantial compliance with these directives was not achieved. Stegall, 11 Vet. App. at 271. Dr. BJN was the examiner for all pertinent 2018 VA examinations. Regarding the autoimmune condition and diverticulitis, the examiner found no objective medical evidence to substantiate a diagnosis of any autoimmune disease or diverticulitis. The examiner provided no rationale beyond noting a June 2012 treatment record (negative autoimmune finding), a July 2012 treatment record (no history or diagnosis of diverticulitis), and a December 2017 treatment record (no complaints, history, or diagnosis of lupus or diverticulitis). Regarding hiatal hernia with reflux, the examiner failed to provide a nexus opinion or rationale after relying on 2003 imaging studies to find no diagnosis of hiatal hernia during the appeal period. Regarding IBS, the examiner noted no symptoms (continuous medication not required, no pertinent surgical history, no episodes of bowel disturbance with abdominal distress or exacerbations or attacks of the intestinal condition, no tumors or neoplasms, no related scars, no functional impact), which is inconsistent with the Veteran’s reports of more severe symptoms. All in all, the examiner failed to provide adequate rationale, discuss the questions posed and evidence cited in the June 2017 Board Remand, and discuss other potentially favorable evidence. Regarding the autoimmune condition, potentially favorable evidence includes, but is not limited to: (a) December 2004 Saginaw VAMC record (livedo reticularis with symptoms of arthritis and hair loss; rash can be isolated phenomena or might be due to underlying autoimmune disease like systemic lupus erythematosus [SLE]; presence of underlying autoimmune disease like SLE is suspected especially because the patient has low back pain, arthritis, and possible hair loss); (b) March 2005 Saginaw VAMC record (mild lymphocytosis of unclear etiology; peripheral blood flow cytometry negative for any underlying lymphoproliferative disorders; lymphocytosis suspected to be secondary to underlying inflammatory process as he is suspected to have an autoimmune disease); (c) July 2008 Saginaw VAMC record (Sneddon’s syndrome, with LLE DVT, with lupus anticoagulant and heterozygous MTHFR mutation; needs to be on coumadin therapy forever to avoid DVT, PE, CVA [thrombotic], or MI); (d) September 2008 Saginaw VAMC record (diagnosing lupus based on July 2008 hematology results); (e) July 2011 Saginaw VAMC record (lupus controlled in remission; DVT from lupus in remission; vasculitis due to lupus not in remission); (f) April 2012 Saginaw VAMC record (systemic lupus; Sneddon syndrome related to lupus); (g) June 2014 Saginaw VAMC record (provider’s concerns were lupus flare-up and septic arthritis); (h) March 2015 VA examination (diagnosis of Sneddon syndrome, although lacked supporting rationale); and (i) July 2018 Saginaw VAMC record (treatment indications include thrombosis left anterior tibia and lupus anticoagulant per hematology note in July 2008 and a lifetime warfarin prescription). Regarding diverticulitis, potentially favorable evidence includes, but is not limited to: (a) October 2006 Saginaw VAMC record (when assessing iron deficiency anemia, the provider opined that the Veteran was most likely having some bleeding from some hemorrhoids or diverticula); (b) October 2007 Saginaw VAMC record (barium enema results noted the presence of multiple small diverticula in the mid and proximal sigmoid colon; impression was diverticulosis); and (c) October 2017 Saginaw VAMC record (diagnosed with diverticulosis after barium enema; instructed to follow a diverticulosis diet). Regarding hiatal hernia with reflux, potentially favorable evidence includes, but is not limited to: (a) March 2015 VA examination (GERD-like condition in December 2003 with treatment until 2005); (b) October 2017 Saginaw VAMC record (no changes to GERD condition); and (c) August 2014 Saginaw VAMC record (the Veteran called tele-triage reporting abdominal bulge; the Veteran reported that he had “never had such terrible pain” in all his life and that it took him to his knees; the provider identified the problem as hiatal hernia with reflux). Regarding IBS, potentially favorable evidence includes, but is not limited to: (a) January 2007 Saginaw VAMC record (continued taking prescription Ranitidine HCL for his stomach); (b) October 2010 Saginaw VAMC record (IBS with frequent stools and stomach discomfort); (c) May 2014 Saginaw VAMC record (the Veteran reported that his whole life revolved around IBS symptoms such that he is unemployable; unpredictable stools, but has 4 to 6 loose stools within a few hours some days); and (d) September 2014 VA Gulf War Examination (the Veteran reported diarrhea “a couple times per week” with 4 to 6 bowel movements per day and only 4 stools per day, pain in the left upper quadrant that only sometimes improved with a bowel movement, one stool per week that was difficult to pass, regular gas, bloating at times, and progressive worsening). In sum, based on the current lack of exposure corroboration and lack of adequate findings and opinions, the Board must remand for further development. Stegall, 11 Vet. App. at 271; Barr, 21 Vet. App. at 311; Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991). 2. Service Connection for Diverticulitis This issue is remanded for the same reasons as discussed above. 3. Service Connection for Hiatal Hernia with Reflux This issue is remanded for the same reasons as discussed above. 4. Increased Rating for IBS This issue is remanded for the same reasons as discussed above. 5. TDIU TDIU remains inextricably intertwined with other remanded issues and must be remanded concurrently. Harris v. Derwinski, 1 Vet. App. 180, 183 (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on a veteran’s claim for the second issue). The matters are REMANDED for the following action: 1. Seek to corroborate the Veteran’s reported, in-service exposure to: (a) chemicals (sarin and soman nerve gas, smoke from oil fires, smoke or fumes from tent heaters, passive cigarette smoke, burning trash/feces, pesticides); (b) drugs (pyridostigmine bromide); and (c) immunizations (anthrax and botulism). Of note, a December 2000 letter from the Office of the Secretary of Defense states that, in March 1991, the Veteran may have been exposed to “a very low level of chemical agent,” but no further specifics were provided. 2. After completing the above, obtain new findings and opinions for all the disabilities herein. Please provide the examiner a complete copy of this Remand and the June 2017 Board Remand, which detail how prior findings and opinions were inadequate. Considering all potentially favorable evidence to the Veteran, including, but not limited to the evidence cited in the Remand herein, the examiner must explain, with supporting rationale: (a) whether the autoimmune condition is: (i) due to an undiagnosed illness; (ii) considered a disease that was caused or aggravated beyond natural progression by any of the contended in-service exposures; (iii) considered a congenital defect that was subject to or aggravated by a superimposed disease or injury during service which resulted in additional disability; and/or (iv) caused or aggravated by a service-connected disability, especially the livedo reticularis; (b) whether the diverticulitis was: (i) caused or aggravated beyond natural progression by any of the contended in-service exposures; and/or (ii) caused or aggravated by a service-connected disability; (c) whether the hiatal hernia was: (i) caused or aggravated beyond natural progression by any of the contended in-service exposures; and/or (ii) caused or aggravated by a service-connected disability; and (d) the current severity of the service-connected IBS, taking into considering the Veteran’s reports. 3. Readjudicate the appeal. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Daus, Associate Counsel