Citation Nr: 18153277 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 16-04 882 DATE: November 27, 2018 REMANDED The claim of entitlement to service connection for a congenital deviated nasal septum with superimposed rhinitis is remanded. The claim of entitlement to service connection for cardiomyopathy is remanded. The claim of entitlement to service connection for hypertension is remanded. The claim of entitlement to service connection for a kidney disorder is remanded. The claim of entitlement to service connection for a skin disorder, claimed as swollen lymph nodes is remanded. The claim of entitlement to service connection for headaches is remanded. The claim of entitlement to service connection for post-traumatic stress disorder (PTSD) is remanded. The claim of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1987 to June 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). For all claims, remand is required to obtain potentially relevant federal records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2018). This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, military records, VA medical records, records from facilities with which the VA has contracted, and records from Federal agencies such as the Social Security Administration. 38 C.F.R. § 3.159(c)(2). VA will end its efforts to obtain records only where it concludes that the records sought do not exist or that further efforts to obtain those records would be futile, such as where the Federal department or agency advises VA that the requested records do not exist or the custodian does not have them. 38 C.F.R. § 3.159(c)(2). Of record is an April 2014 Notice of Award from the Social Security Administration. The letter indicates that the Veteran became disabled under SSA rules in October 2013. Records from the SSA for the Veteran’s disability claim have not been associated with the Veteran’s file. As they may contain evidence relevant to the Veteran’s claims, the Board finds that remand is required to obtain them. 1. Entitlement to service connection for cardiomyopathy, hypertension, a kidney disorder, and a skin disorder. Remand is warranted for these claims to obtain an adequate opinion. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran claims entitlement to service connection for cardiomyopathy, hypertension, a kidney disorder, and a skin disorder as a result of his exposure to environmental hazards during the course of his service in the Gulf War in Southwest Asia. A September 2013 VA Memorandum documents a request for a direct opinion for diagnosed Goodpasture’s disease, which was noted to encapsulate the Veteran’s claimed hypertension, kidney failure, and enlarged heart. In a September 2013 VA opinion, the examiner opined that the Veteran’s Goodpasture’s disease was less likely than not caused by his service. The examiner explained that, while exposure to hydrocarbons is a possible cause of Goodpasture’s disease, there have been no studies showing increased incidence of Goodpasture’s disease in veterans who were exposed to Gulf War toxins, including hydrocarbons. The Veteran’s Goodpasture’s disease was diagnosed ten years after service, and the interim, it is entirely possible that he had other more long-term chemical exposures or viral illnesses which may have triggered the Goodpasture’s disease. This examination is inadequate. The examiner acknowledged that the Veteran’s in-service exposure to environmental hazards during his service in the Gulf War could have possibly caused the Veteran’s diagnosed Goodpasture’s disease. Despite this, the opinion relies on there being no study that shows a link between environmental toxins in the Gulf War and Goodpasture’s disease and the chance that the Veteran could have been exposed to toxins post-service that caused his disease. This opinion relies on supposition and counters an accepted cause of Goodpasture’s disease by relying on the lack of studies discussing veterans of the Gulf War and Goodpasture’s disease. A VA opinion rendered in August 2015 does not remedy this inadequacy. The examiner noted that the Veteran was diagnosed with ends stage renal disease Goodpasture’s disease, hypertension, cardiomyopathy, and abscesses of the face and thigh, all of which were with clear and specific etiologies and diagnoses, in opining that they were not caused by exposure to environmental hazards in Southwest Asia. The August 2015 opinion is further inadequate because the examiner appears to suggest that, because the Veteran’s claimed conditions had clear and specific diagnoses and etiologies, they were not related to the Veteran’s service in Southwest Asia. This opinion appears to suggest that because the claimed disorders did not fall within the regulations for presumptive service connection for Persian Gulf Veterans under 38 C.F.R. § 3.317, no nexus was shown. However, that fact alone does not automatically mean that the Veteran’s present disability is not related to his exposure to environmental hazards in the Gulf War. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). On remand, the Board finds that an adequate opinion should be obtained that addresses the Veteran’s claims on a direct theory of entitlement. 2. Entitlement to service connection for a congenital deviated nasal septum with superimposed rhinitis. Remand is required for a clarifying addendum opinion. Generally, service connection may be granted for congenital diseases but not congenital defects. Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009) (discussing VAOPGCPREC 82-90 (July 18, 1990)); Monroe v. Brown, 4 Vet. App. 513, 515 (1993). The presumption of soundness applies if a veteran’s congenital disease is not noted at entry. Quirin, 22 Vet. App. at 396-97. Congenital and developmental defects are not “diseases or injuries” in the meaning of applicable legislation for disability compensation purposes. 38 C.F.R. §§ 3.303(c), 4.9 (2018). Service connection may be granted for congenital diseases which either first manifest during service or which preexist service and progress at an abnormally high rate during service. See VAOPGCPREC 67-90; 55 Fed. Reg. 43253 (1990); VAOPGCPREC 82-90; see also 38 C.F.R. §§ 3.303(c), 3.306 (2018). Service connection for a congenital defect can only be established if the congenital defect was subject to a superimposed disease or injury during military service that resulted in disability apart from the congenital or developmental defect. VAOPGCPREC 82-90 (July 18, 1990). The Veteran alleges that a nose and throat disorder began during service and has existed since that time. The Veteran’s service treatment records contain a May 1991 health record indicating that the Veteran was exposed to significant levels of sulfur dioxide and hydrogen sulfide gas due to oil-well fires. The record noted that this exposure may be of clinical significance should the Veteran develop any respiratory illnesses. On VA examination in July 2015, the examiner diagnosed congenital deviated nasal septum and rhinitis. The examiner explained that the symptoms of rhinitis had started 17 years prior and then resolved in the last year. In addition to diagnosing congenital deviated nasal septum, the examiner noted that the Veteran had suffered additional nasal blockage and temporary aggravation by symptoms consistent with allergic rhinitis and increased nasal obstruction as a result of mucosal inflammation from exposure during Gulf War duty. But it isn’t clear whether this is a defect or disease and the opinion is thus insufficient. 3. Entitlement to service connection for headaches. Remand is required because the headaches are inextricably intertwined with the claim for service connection for hypertension. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (noting that two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Private emergency department records from April 2011 indicate that the Veteran sought treatment in late March 2011 with complaints of headaches that had affected him for five days. He was diagnosed with a hypertensive emergency with acute kidney injury, and it appears that his headaches were secondarily related to his eventually diagnosed high blood pressure. The Veteran has claimed entitlement to this claimed condition on a secondary basis. Therefore, adjudication of this claim is deferred pending the outcome of the primary claim. 4. Entitlement to service connection for PTSD. Remand is required for an adequate examination. A July 2015 VA examination diagnosed mood disorder, not otherwise specified. The examination was conducted for a claim for service connection for PTSD. Because PTSD was not found, the examiner did not provide an opinion for the mood disorder. The Board finds that the opinion is thus inadequate because the examiner noted that the Veteran had a long history of mood/anxiety disorders with possible psychotic complaints. Accordingly, an examination is warranted to ascertain whether a present psychiatric disorder is related to the Veteran’s service. 5. Entitlement to a TDIU. Remand is required regarding the Veteran’s TDIU claim as it is inextricably intertwined with the resolution of the above-noted issues. See Harris, 1 Vet. App. at 183. The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 2. Contact the SSA and obtain a copy of that agency’s decision concerning the Veteran’s claim for disability benefits, including any medical records used to make the decision. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his claimed heart disorder, hypertension, and renal disease, variously attributed to Goodpasture’s disease, and his skin disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that Goodpasture’s disease, end stage renal disease, hypertension, and skin abscesses had onset in, or are otherwise related to, active military service. The examiner must specifically address the Veteran’s conceded in-service exposure to environmental toxins in the Gulf War, including a May 1991 health record indicating that the Veteran was exposed to significant levels of sulfur dioxide and hydrogen sulfide gas due to oil-well fires. 4. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his claimed psychiatric disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must elicit from the Veteran a full description of his alleged stressor. First, the examiner must indicate whether or not the Veteran has a diagnosis of PTSD. If a diagnosis of PTSD is deemed appropriate, the examiner must provide an opinion regarding whether it is at least as likely as not (a 50 percent or greater probability) that the PTSD is due to the alleged in-service stressors and/or the Veteran’s stressors including any fear of hostile military activity. Second, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that any other diagnosed psychiatric disorder had onset in, or is otherwise related to, active military service. The examiner must specifically address all prior diagnoses of record, including anxiety and mood disorders. If any prior diagnosis is not found, an explanation should be provided. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Steve Ginski, Associate Counsel