Citation Nr: 18149551 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 10-33 219 DATE: November 9, 2018 REMANDED Entitlement to service connection for a bilateral elbow disability, to include as due to Persian Gulf War service, is remanded. Entitlement to service connection for a bilateral knee disability, to include as due to Persian Gulf War service, is remanded. Entitlement to service connection for a bilateral hand disability, to include as due to Persian Gulf War service, is remanded. Entitlement to service connection for a liver disability, to include as due to Persian Gulf War service, is remanded. Entitlement to service connection for a disability manifested by weight gain, to include as due to Persian Gulf War service, is remanded. Entitlement to service connection for carcinoma of the abdominal cavity status post-surgical removal, to include as due to Persian Gulf War service, is remanded. Entitlement to service connection for a kidney disability, to include as due to Persian Gulf War service is remanded. Entitlement to service connection for psoriasis, to include as due to Persian Gulf War service, is remanded. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for a gastrointestinal condition, to include as secondary to service-connected PTSD or carcinoma of the abdominal cavity status post-surgical removal, is remanded. Entitlement to service connection for acid reflux, to include as secondary to service-connected PTSD, is remanded. Entitlement to service connection for hiatal hernia, to include as secondary to service-connected PTSD, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from December 1987 to December 1991. The case was previously before the Board in September 2016, at which time the Board granted service connection for sleep apnea with subjective short term memory loss; denied service connection for a disability manifested by weight gain, carcinoma of the abdominal cavity, status post-surgical removal, a bilateral hand disability, a bilateral elbow disability, a bilateral knee disability, kidney stones, a liver disability, and psoriasis; and remanded service connection for erectile dysfunction, a gastrointestinal disability, acid reflux, and hiatal hernia. The Veteran appealed the September 2016 decision to the U.S. Court of Appeals for Veterans Claims (Court). In a January 2018 memorandum decision, the Court set aside the portion of the January 2018 Board decision denying service connection for a disability manifested by weight gain, carcinoma of the abdominal cavity, status post-surgical removal, a bilateral hand disability, a bilateral elbow disability, a bilateral knee disability, kidney stones, a liver disability, and psoriasis and remanded the matters for additional development consistent with the decision and readjudication consistent with the decision. The case was again before the Board in July 2018, at which time, the Board remanded the claims for further development and adjudication. However, as will be discussed further below, the development ordered by the Board was not completed, and an additional remand is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Furthermore, although the issues certified to the Board were for unspecified joint pain of the hands, kidney stones, and cirrhosis of the liver, in light of Clemons v. Shinseki, 23 Vet. App. 1 (2009), the issues have been recharacterized as reflected above to comport with the record. Additionally, the Veteran filed a Notice of Disagreement concerning the issues of entitlement to an earlier effective date for the grant of the award of service connection for posttraumatic stress disorder (PTSD), entitlement to a higher initial evaluation for PTSD, and entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). The RO issued a Statement of the Case (SOC) in September 2018, however the Veteran has not filed a substantive appeal on the issues. As such, the Board will not accept jurisdiction over them at this time. Entitlement to service connection for a bilateral elbow disability, a bilateral knee disability, a bilateral hand disability, a liver disability, a disability manifested by weight gain, carcinoma of the abdominal cavity status post-surgical removal, a kidney disability, and psoriasis, to include as due to Persian Gulf War service, is remanded. 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; 38 C.F.R. § 3.159. In addition, where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall, 11 Vet. App. at 271. As previously noted in July 2018, the claims for service connection for a bilateral elbow disability, a bilateral knee disability, a bilateral hand disability, a liver disability, a disability manifested by weight gain, carcinoma of the abdominal cavity status post-surgical removal, a kidney disability, and psoriasis were before the Board. At such time, the Board remanded the issues as the Board noted that throughout the Veteran’s current appeal, his service treatment records (STRs) for his entire active duty service were not in the record. A January 2011 formal finding memorandum was issued that his STRs were unavailable for review. Multiple procedural documents, including as recently as a November 2017 rating decision, show that the Veteran’s STRs remained unavailable. However, the Board noted that at some point following the November 2017 rating decision, what appeared to be a complete set of the Veteran’s STRs were found and associated with his claims file. Despite receiving this pertinent and previously unavailable evidence, no action was taken by the RO to consider this newly received evidence. Notably, the Veteran was given several VA examinations without the examiners having the benefit of this information. Accordingly, the Board found that for the Veteran’s bilateral knee disability, bilateral elbow disability, bilateral hand disability, disability manifested by weight gain, liver disability, kidney disability, carcinoma of the abdominal cavity, and psoriasis, a remand was required to obtain supplemental VA opinions to consider these STRs. Additionally, in its January 2018 memorandum decision, the Court described the deficiencies found in the September 2016 Board decision. Of note, at the time of that decision, it appeared by the lack of discussion of the now available STRs in the decision, either the Veteran’s STRs had remained unavailable, or the Court had not been informed of their existence in the record. With regard to the service connection claims for a bilateral hand disability, a bilateral elbow disability, a bilateral knee disability, and a disability manifested by weight gain, the Court found that the Board had ignored or discounted favorable lay evidence presented by the Veteran in a March 2009 statement and at his March 2011 Decision Review Officer (DRO) hearing regarding the onset of his symptoms of joint pain and weight gain. Moreover, the Court determined that the Board had also failed to discuss the favorable evidence provided by the May 2015 VA examiner, who indicated that the Veteran’s report of repetitive stressful physical activities during his military service and as a police officer were consistent with his diagnosed chronic strain of both hands and his osteoarthritic changes at both elbows. Based on these conclusions, the Court found the Board’s reasoning in denying these claims to be inadequate. With regard to the service connection claims for carcinoma of the abdominal cavity, a kidney disability, a liver disability, and psoriasis, the Court found that the July 2012 and May 2015 VA opinions were inadequate. In that regard, the Court stated that the negative nexus opinions of the July 2012 and May 2015 VA examiners were impermissibly “based solely on the 2009 [Institute of Medicine (IOM)] report’s finding that there was inadequate or insufficient evidence to support a categorical presumptive association between the environmental exposures experienced by veterans of the Persian Gulf and the disabilities claimed by [this Veteran].” The Court noted that these opinions provided no additional rationale. As a result, the Court determined that the July 2012 and May 2015 VA examiners’ reliance on citing to the 2009 IOM report, without any further analysis or discussion of the specific circumstances of the Veteran’s asserted disabilities, rendered their opinions inadequate on their face. Another deficiency of the July 2012 and May 2015 VA opinions noted by the Court was their failure to consider whether the Veteran’s environmental exposures caused a delayed onset of the asserted disabilities. The Court found that the July 2012 and May 2015 had apparently relied on the finding that the Veteran’s disabilities were not present upon separation from service for supporting their negative nexus opinions. Finally, the Court summarized how the July 2012 and May 2015 VA opinions had described the pathology and risk factors of the Veteran’s disabilities without any discussion of the Veteran’s specific medical history. In particular, the examiner noted that “carcinoid tumors are rare with a variable biological behavior and a poorly defined behavior.” Furthermore, although the examiner identified the risk factors associated with developing kidney stones and psoriasis (as well as the prevalence of psoriasis in certain age groups), the examiner did not explain how these considerations were relevant to the Veteran’s specific medical history. Overall, the Court concluded that the September 2016 Board’s reliance on the July 2012 and May 2015 VA opinions in denying the claims were inappropriate based on their deficiencies. For all the foregoing reasons, the Board found that a remand was required to obtain supplemental VA opinions that took into consideration the Veteran’s specific assertions regarding his environmental exposures during service and his complete medical history, including the now available STRs, and provide a fully reasoned analysis based on sound medical principles. However, such examinations have not been obtained, therefore an additional remand is necessary in order to obtain the previously ordered examinations. Entitlement to service connection for erectile dysfunction, gastrointestinal condition, acid reflux, and a hiatal hernia, to include as secondary to service-connected PTSD or due to carcinoma of the abdominal cavity status post-surgical removal, are remanded. The Board notes that the Veteran’s STRs are silent for any complaints, treatment or diagnoses of erectile dysfunction, gastrointestinal condition, acid reflux, or hiatal hernia. However, the Veteran has also alleged that such are due to his now service-connected PTSD or treatment for such. Furthermore, the Board notes that no examinations have been conducted, therefore on remand examinations which discuss the etiology of the Veteran’s claimed erectile dysfunction, gastrointestinal condition, acid reflux and hiatal hernia should be obtained. Furthermore, such examinations should discuss the Veteran’s allegations of secondary service connection. Finally, the Veteran has also alleged that his gastrointestinal condition is secondary to his carcinoma of the abdominal cavity status post-surgical removal. Therefore, the Board finds that such is inextricably intertwined with the matter being remanded, and therefore consideration of the Veteran’s claim for service connection for a gastrointestinal condition must be deferred pending the additional development ordered below. Due to the amount of time which will pass on remand, updated treatment records should be obtained and associated with the record. The matters are REMANDED for the following action: 1. Obtain updated treatment records. 2. Perform the necessary steps to confirm that the record now contains a complete set of the Veteran’s STRs for his active duty service from December 1984 to December 1991. 3. Obtain supplemental VA opinions from appropriate clinicians regarding whether each of the Veteran’s asserted disabilities, including bilateral hand disability, bilateral elbow disability, bilateral knee disability, disability manifested by weight gain, carcinoma of the abdominal cavity, kidney disability, liver disability, and psoriasis, are at least as likely as not related to his active duty service, to include his exposure to environmental hazards during his Persian Gulf War service. In providing the opinions requested, the examiner must be provided with the entire claims file, to include a copy of this REMAND. The clinician must address the Veteran’s lay assertions regarding the onset of his symptoms and specifically address: A) March 2009 Veteran statement that his health issues began during Desert Storm and have continued since his discharge. B) March 2011 DRO testimony that he noticed weight gain in approximately January 1991. C) August 2015 representative statement that exposure to various toxins during service could have caused metabolic changes in the Veteran that manifested in weight gain. D) The clinician should address an August 1991 STR noting that the Veteran had gained 10 pounds within the past two months. E) The clinician should address the Veteran’s contention that during service, he had observed a positive test reading for mustard gas, he was exposed to burning oil wells, burn pits, smoke, dust storms and other environmental hazards, and while in Saudi Arabia, he was required to dig holes and bury his uniforms, which had “pink droplets of oil” on them. F) If the clinician concludes that other risk factors, instead of the Veteran’s reported in-service environmental exposures, were more likely the cause of any of his disabilities, the clinician must identify how the Veteran’s specific medical history makes him susceptible to developing the disability. G) If the clinician relies on any medical literature or studies for his/her opinion, the clinician must explain how it relates to the Veteran’s specific medical history. A clear rationale must be provided for the opinions provided. 4. Then, arrange for the Veteran to undergo VA examinations with appropriate VA examiners to determine the likely etiology of his claimed erectile dysfunction, gastrointestinal condition, acid reflux, and hiatal hernia. Based on a review of the record, examination of the Veteran, and any tests or studies deemed necessary, the examiners should provide opinions responding to the following: A) Is it at least as likely as not (a 50 percent or better probability) that the Veteran’s claimed erectile dysfunction, gastrointestinal condition, acid reflux and/or hiatal hernia are caused by or began during the Veteran’s active duty service? B) Is it at least as likely as not (a 50 percent or better probability) that the Veteran’s claimed erectile dysfunction, gastrointestinal condition, acid reflux and/or hiatal hernia are caused by any service connected disabilities (including, but not limited to, PTSD) or the treatment for such disabilities? C) Is it at least as likely as not (a 50 percent or better probability) that the Veteran’s claimed erectile dysfunction, gastrointestinal condition, acid reflux and/or hiatal hernia is aggravated by any service connected disabilities (including, but not limited to, PTSD) or the treatment for such disabilities? The examiner must include a complete rationale for all opinions provided, to include citation to supporting   factual evidence and medical literature as appropriate. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Unger, Associate Counsel