Citation Nr: 18148886 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 05-13 224 DATE: November 8, 2018 REMANDED Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a lumbar spine disorder is remanded. Entitlement to service connection for a nasal and/or sinus disorder, to include sinusitis and/or rhinitis, is remanded. Entitlement to service connection for a hiatal hernia with reflex esophagitis and gastroesophageal reflux disorder (GERD) is remanded. Entitlement to a disability rating in excess of 10 percent since September 5, 2003, for peptic ulcer disease (PUD) is remanded. REASONS FOR REMAND The Veteran had active service from September 1969 to June 1971. Pursuant to a joint motion for remand (JMR) filed by VA and the Veteran, in May 2018 the Court of Appeals for Veterans Claims (CAVC) vacated the Board’s August 2017 decision and remanded it to the Board for compliance with its instructions. Before the CAVC, the parties agreed that the Board did not ensure compliance with its prior remand instructions, as noted below. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Pursuant to the JMR, the matters are remanded for further development. In June 2018, the Board notified the Veteran that his remanded case had been received, and that if he wished to submit additional evidence he must indicate on an enclosed form whether he waived review of any additional evidence by the agency of original jurisdiction (AOJ). The Veteran returned the form in July 2018, indicating he waived AOJ review of the additional evidence submitted since the CAVC remand. However, as noted below, the CAVC JMR includes instructions to return the Veteran’s claims file to the AOJ for review of additional evidence submitted. The JMR is binding on the Board and there is no indication that the Veteran intended to circumvent the provisions of the JMR as negotiated by the parties when he waived AOJ review of evidence submitted after CAVC granted the May 2018 JMR. In regard to the Veteran’s claims to reopen a previously denied claim of entitlement to service connection for a lumbar spine disability and entitlement to a disability evaluation in excess of 10 percent for his service-connected PUD disability, the Board’s September 2015 remand instructed the AOJ to review the Veteran’s additional evidence and readjudicate the appeal. The AOJ has neither granted the Veteran’s claims nor issued a supplemental statement of the case (SSOC) on the matters. Therefore, these two claims must be remanded again so that the AOJ may comply with the September 2015 remand instructions. In regard to the Veteran’s claim of entitlement to service connection for hiatal hernia, GERD, and reflex esophagitis as secondary to his service-connected PUD, the January 2016 addendum opinion is inadequate to resolve the appeal. In particular, the examiner failed to address the Veteran’s competent lay statements regarding in-service symptomatology in his opinion, as instructed in the November 2013 remand. A new medical opinion is needed to comply with the November 2013 remand instructions. In regard to the Veteran’s claim of entitlement to service connection for sinus and nasal disorders, to include sinusitis and rhinitis, the January 2016 addendum opinion is inadequate to resolve the appeal. In particular, the examiner failed to provide a rationale for his opinion that the Veteran’s diagnoses of rhinitis during the appellate period were neither incurred in or aggravated by the Veteran’s service or his service-connected PUD disability, as instructed in the November 2013 remand. A new medical opinion is therefore needed to comply with the November 2013 remand instructions. The matters are REMANDED for the following action: 1. Review all evidence received since the December 2012 SSOC on a de novo basis to determine if new and material evidence has been submitted to reopen a previously denied claim of entitlement to service connection for a lumbar spine disability. Following the review and any additional development deemed necessary, re-adjudicate the claim. Should the claim not be granted in its entirety, issue an appropriate supplemental statement of the case (SSOC) and forward the claim to the Board for adjudication. 2. Review all evidence received since the January 2013 SSOC on a de novo basis to determine if the Veteran’s PUD disability warrants a rating in excess of 10 percent since September 5, 2003. Following the review and any additional development deemed necessary, re-adjudicate the claim. Should the claim not be granted in its entirety, issue an appropriate supplemental statement of the case (SSOC) and forward the claim to the Board for adjudication. 3. Return the claims file to the November 2012 and January 2016 VA examiner and request he re-review the claims file and respond to the inquiries below. If the examiner is not available, arrange for another appropriate VA examiner to provide an addendum medical opinion to assist in determining the etiology of the Veteran’s esophageal diagnoses. All appropriate tests, studies and consultations should be accomplished, including a new medical examination if necessary, and all clinical findings should be reported in detail in the narrative portion of the examination report. A rationale should be given for all opinions and conclusions rendered. Based upon a review of the relevant evidence of record, history provided by the Veteran, and sound medical principles, the VA examiner should provide the following opinions: a) Were any of the Veteran’s current esophageal diagnoses, to include hiatal hernia, reflux esophagitis, and/or GERD, incurred in service or caused or aggravated by an in-service injury, event or illness? b) Are any of the Veteran’s current esophageal diagnoses proximately due to or aggravated (e.g. worsened, and if so, to what degree) by the Veteran’s service-connected PUD disability? c) If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and also by the Veteran’s statements as to the nature, severity, and frequency of his observable symptoms over time. IN RENDERING THE REQUESTED OPINIONS, THE EXAMINER MUST CONSIDER AND ADDRESS THE VETERAN’S REPORTS OF ESOPHAGEAL SYMPTOMS, INCLUDING HEARTBURN AND FLUID BACKING UP IN HIS MOUTH AT NIGHT, RESULTING IN GAGGING, DURING SERVICE. HE MUST ALSO ADDRESS THE VETERAN’S REPORTS OF HEARTBURN DURING AND SINCE SERVICE. The examiner is advised that the Veteran is competent to describe symptoms of heartburn, indigestion, gagging, regurgitation, and chest discomfort. The examiner must review the entire record in conjunction with rendering the requested opinions. IN ADDITION TO ANY RECORDS THAT ARE GENERATED AS A RESULT OF THIS REMAND, the VA examiner’s attention is drawn to the following: * April 1970 service treatment records (STRs) indicate the Veteran reported stomach pains. The April 1971 separation report of medical history indicates the Veteran denies frequent indigestion; stomach, liver or intestinal trouble; and pain or pressure in chest. The April 1971 separation report of medical examination indicated a clinically normal mouth and throat evaluation. See “STR – Medical,” received September 28, 2015, pages 17-19, 29 of 67. * The September 1975 VA medical examination, when the Veteran reported pain in his upper abdomen, trouble eating, and vomiting episodes. An upper GI series indicated a normal evaluation. See “VA examination,” received August 18, 1975, pages 1, 4, 10, 13 of 14. * At the September 1984 VA medical examination, the Veteran reported taking over-the-counter antacids “now and then” for heartburn. There was a slight degree of epigastric tenderness on deep palpation. An upper GI series was essentially normal. The radiologist commented that there was smooth passage of barium through the esophagus and there was no definite evidence of hiatal hernia or GERD. The diagnosis was PUD. See “VA Memo,” received October 1, 1984. * The March 1991 VA medical examination, when the Veteran described gastrointestinal symptoms including stomach cramps. Upper GI series, including esophagus, was normal. The pertinent diagnosis was PUD. See “VA Examination,” received March 25, 1991. * September 1998 private treatment records that indicate the Veteran had a history of GERD and reported he had intermittent chest discomfort “through the years” with recently increased frequency of substernal “burning” discomfort possibly related to particular foods. The impression following treatment in March 1999 included GERD. See “Medical Treatment Record – Non-Government Facility,” received September 27, 2004, pages 39-42 of 59. * Private medical treatment records dated February 2000 and October 2000 indicate a history of GERD. See “Medical Treatment Record – Non-Government Facility,” received September 27, 2004, pages 31-35 of 59. * June 2000 treatment records indicate the Veteran denied a history of ulcers and reflux. See “Medical Treatment Record – Government Facility,” received November 24, 2003, page 19 of 20. * November 2002 VA treatment records indicate the Veteran reported reflux symptoms for more than 10 years. In August 2003, an EGD revealed a 3cm. hiatal hernia, with no esophagitis, and with normal stomach, duodenum, and pylorus. See “Medical Treatment Record – Government Facility,” received August 31, 2006, pages 10-13 of 25. * The November 2003 VA medical examination, when the Veteran reported episodes of indigestion and burning in the epigastrium. Upper GI series revealed a small sliding-type of hiatal hernia with minimal GERD and changes of esophagitis. The diagnoses included hiatal hernia, with reflux esophagitis. See “VA Examination,” received November 5, 2003, page 8 of 11. * The December 2005 VA medical examination, when the examiner noted that the Veteran had been diagnosed with an ulcer in the early 1970s. The Veteran reported symptoms of abdominal pain, nausea, vomiting, heartburn and indigestion. He stated that his symptoms recurred a few months later, and since then, he had had increased pyrosis. He also described dysphagia, burning in this throat, and diarrhea, with occasional nausea, vomiting and rare hematemesis. The examiner opined that the Veteran’s hiatal hernia with evidence of reflux esophagitis was not related to his previous PUD diagnosis. See “VA Examination,” received December 16, 2005. * In the Veteran’s April 2006 claim for service connection, the Veteran reported that his hiatal hernia and reflux esophagitis began during service. See “VA 21-526 Veterans Application for Compensation or Pension,” received April 19, 2006, page 2 of 4. In a statement accompanying his application, the Veteran reported that during service his throat would burn and food would back up in his mouth. See “VA 21-4138 Statement in Support of Claim,” received April 19, 2006. * In May 2006, the Veteran asserted that his hiatal hernia and PUD were related but different. He reported experiencing symptoms of his hiatal hernia with reflux esophagitis since service. See “VA 21-4138 Statement in Support of Claim,” received May 30, 2006. * Private treatment records from April 2006 to June 2006 indicate findings of reflux esophagitis. See Medical Treatment Record – Government Facility,” received November 2, 2012. * A June 2006 EGD revealed a low-grade distal acute erosive esophagitis. See “Medical Treatment Record – Government Facility,” received September 24, 2012, see page 4 of 8. * In September 2006, the Veteran stated that his hiatal hernia and reflux esophagitis conditions began in service because he experienced throat problems during service. See “Correspondence,” received September 29, 2006. * At the November 2007 Board hearing, the Veteran testified that, during service, he experienced shoulder pain and fluid backing up into his mouth at night, resulting in gagging. See “Hearing Testimony,” received November 21, 2007. * The November 2012 VA medical examination for esophageal conditions, when the examiner opined the Veteran’s service did not cause or aggravate the Veteran’s GERD. See “VA Examination,” received November 27, 2012, page 21 of 49. * The January 2016 addendum VA medical opinion, when the examiner opined that the Veteran’s PUD did not cause or aggravate the Veteran’s GERD, hiatal hernia, and reflux esophagitis. See “C&P Exam,” received January 26, 2016. A thorough explanation must be provided for the opinions rendered. If the examiner cannot provide the requested opinion without resorting to speculation, s/he should expressly indicate this and provide supporting rationale as to why the opinion cannot be made without resorting to speculation. The examiner should schedule a new examination only if necessary to provide an adequate opinion. THE EXAMINER IS ADVISED THAT BY LAW, THE MERE STATEMENT THAT THE CLAIMS FOLDER WAS REVIEWED AND/OR THE EXAMINER HAS EXPERTISE IS NOT SUFFICIENT TO FIND THE EXAMINATION/OPINION SUFFICIENT. 4. Return the claims file to the November 2012 and January 2016 VA examiner and request he re-review the claims file and respond to the inquiries below. If the examiner is not available, arrange for another appropriate VA examiner to provide an addendum medical opinion to assist in determining the etiology of the Veteran’s sinus and nasal disorders. All appropriate tests, studies and consultations should be accomplished, including a new medical examination if necessary, and all clinical findings should be reported in detail in the narrative portion of the examination report. A rationale should be given for all opinions and conclusions rendered. Based upon a review of the relevant evidence of record, history provided by the Veteran, and sound medical principles, the VA examiner should provide the following opinions: Were any of the Veteran’s rhinitis diagnoses since September 2003 incurred in service or caused or aggravated by an in-service injury, event or illness? IN RENDERING THE REQUESTED OPINION, THE EXAMINER MUST CONSIDER AND ADDRESS ANY DIAGNOSIS OF RHINITIS SINCE SEPTEMBER 9, 2003. The examiner must review the entire record in conjunction with rendering the requested opinions. IN ADDITION TO ANY RECORDS THAT ARE GENERATED AS A RESULT OF THIS REMAND, the VA examiner’s attention is drawn to the following: * December 1969 service treatment records (STRs) indicate the Veteran received treatment for an acute, diffuse upper respiratory infection. A July 1970 x-ray revealed the sinus cavities to be normal; however, the nasal turbinates appeared to be markedly engorged, more so on the right. The radiologist opined that these findings were compatible with allergic rhinitis. On separation examination in April 1971, clinical evaluation of the nose and sinuses was normal. See “STR – Medical,” received September 28, 2015, pages 15-20 of 67. * The March 1991 VA examination, when the Veteran reported frequent attacks of sinusitis. Examination of the nose, sinuses, mouth, and throat was normal. X-ray revealed normal sinuses. The pertinent diagnosis was history of recurrent sinusitis. See “VA Examination,” received March 25, 1991. * In April 1991, the Veteran underwent surgery for nasal obstruction and sinusitis secondary to a deviated nasal septum and a left concha bullosa. See “Medical Treatment Records – Furnished by SSA,” received July 26, 2011, page 74 of 127. A May 1991 follow-up note reflects that the Veteran was able to breathe through his nose. * In May 1999, the Veteran complained to his private physician of chest and sinus congestion and a productive cough. He stated that he got these symptoms of an upper respiratory infection once every year. The assessment was upper respiratory infection/sinus congestion. The assessment following treatment in June 2000 included allergic rhinitis. See “Correspondence,” received December 9, 2004, page 15, 34 of 47. * During VA treatment in February 2005, the Veteran complained of sinus drainage and itchy eyes. The assessment was allergic rhinitis. See “Medical Treatment Record – Government Facility,” received August 31, 2006, page 8 of 25. * Private treatment records document assessments of acute sinusitis in January 2007 and February 2008 and an assessment of chronic sinusitis in October 2009. See “Medical Treatment Record – Government Facility,” received November 2, 2012. * In March 2011, the Veteran underwent surgery for nasal obstruction, left concha bullosa, and right maxillary sinus mucus retention cyst. See “Medical Treatment Record – Government Facility,” received June 1, 2011. * On VA examination in November 2012, the examiner indicated that the Veteran had been diagnosed with chronic sinusitis. The Veteran reported an onset of sinusitis in late 1969 or early 1970 with nonseasonal nasal congestion and retro-orbital and paranasal sinus pressure. He stated that he continued to experience nocturnal nasal congestion and paranasal sinus pressure. The Veteran denied allergic rhinitis symptoms. X-ray of the paranasal sinuses was normal. The impression was nonallergic rhinitis, status post septoplasty, maxillary antrostomy and status post turbinate reduction, excision of concha bullosa, and revision right antrostomy with removal of sinus retention cyst. The examiner commented that paranasal sinus x-ray was normal and there was no sinus disorder. The examiner opined that it was less than likely that the Veteran’s nasal (sinus) condition was incurred in or was aggravated beyond normal progression by service. The examiner did not opine on the Veteran’s rhinitis diagnosis. See “VA Examination,” received November 27, 2012, page 27-36 of 49. * January 2016 addendum medical opinion, when the examiner opined the Veteran’s current chronic sinusitis diagnoses since September 2003 were not caused or aggravated by the Veteran’s in-service incidents of upper respiratory infection and other lay reports of sinus and nasal symptoms. The examiner did not provide a rationale on the Veteran’s rhinitis diagnoses since September 2003. See “C&P Exam,” received January 5, 2016. A thorough explanation must be provided for the opinion rendered. If the examiner cannot provide the requested opinion without resorting to speculation, s/he should expressly indicate this and provide supporting rationale as to why the opinion cannot be made without resorting to speculation. The examiner should schedule a new examination only if necessary to provide an adequate opinion. THE EXAMINER IS ADVISED THAT BY LAW, THE MERE STATEMENT THAT THE CLAIMS FOLDER WAS REVIEWED AND/OR THE EXAMINER HAS EXPERTISE IS NOT SUFFICIENT TO FIND THE EXAMINATION/OPINION SUFFICIENT. 5. Following the review and any additional development deemed necessary, re-adjudicate the claims. Should the claims not be granted in its entirety, issue an appropriate supplemental statement of the case (SSOC) and forward the claims to the Board for adjudication. The appellant 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 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 (West 2014). Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Anwar, Associate Counsel