Citation Nr: 1808550 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 09-32 130 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for sarcoidosis, to include as secondary to service-connected unspecified gastritis. 2. Entitlement to service connection for a respiratory disability, to include mild restrictive lung disease and bronchitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his parents ATTORNEY FOR THE BOARD A. Purcell, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1989 to February 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Jurisdiction has been transferred to the RO in Los Angeles, California. In April 2013, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In August 2013, March 2016, and July 2017, the Board remanded the claims for additional development. As noted in the July 2017 remand, the record reveals a January 1993 Application for Compensation containing service connection claims for a puncture wound of the left hand, pilonidal cystectomy, colitis, a cervical spine disability, bilateral hearing loss, and tinnitus. As these claims have not been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The issue of entitlement to service connection for a respiratory disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Resolving any doubt in the Veteran's favor, the Veteran's nonpulmonary sarcoidosis is related to service. CONCLUSION OF LAW The criteria to establish service connection for nonpulmonary sarcoidosis have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is also warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Such secondary service connection is warranted for an increase in the severity of a nonservice-connected disability, a permanent worsening beyond the natural progress of the nonservice-connected disease, that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). The Veteran seeks service connection for sarcoidosis, asserting that such condition had an onset in service, is related to service, or was caused by or aggravated by his service-connected unspecified gastritis. The Veteran has a current diagnosis of sarcoidosis. See September 2017 VA Contract Examiner Addendum; July 2016 VA Opinion Report. The Veteran has been diagnosed with sarcoidosis of the liver, gastrointestinal tract, peripheral nervous system, and joints, with minimal lung involvement. See July 2008 VA Treatment Record. Thus, the first element of a current disability has been met. As to the second element of service connection, the Veteran reported in-service stomach symptoms, including vomiting, diarrhea, and stomach cramps. See April 2013 Board Hearing Tr. at 20. The Veteran asserts that these symptoms began in service and have continued since service. The Veteran's service treatment records (STRs) document various complaints and treatments for symptoms including nausea, diarrhea, stomach cramps, and vomiting. See March 1992 emergency care and treatment record (noting severe abdominal pain and "constant cramping"); June 1992 STR (noting a complaint of upset stomach and vomiting); January 1993 STRs (noting a complaint of diarrhea, reddish vomit, and sweats); January 14, 1993 emergency care and treatment record (noting a chief complaint of body aches, chills, and nausea); January 23, 1993 emergency care and treatment record (noting chief complaint of stomach cramps, diarrhea, and neck pain). The third and last element of the Veteran's claim for service connection is the existence of a causal link between his in-service symptomatology and his present sarcoidosis. A July 2016 VA opinion provider reviewed the Veteran's claims file and opined that the Veteran's nonpulmonary sarcoidosis was at least as likely as not incurred in or caused by service. The VA opinion provider noted the Veteran's credible reports that he experienced nausea, vomiting, diarrhea, stomach cramps, body aches, cold sweats, and night sweats beginning in service. The VA opinion provider also noted the September 2007 Veteran's private physician's opinion that the Veteran was likely suffering from the effects of sarcoidosis during service. The VA opinion provider explained that the Veteran's gastrointestinal complaints have continued, and that the Veteran's current VA physicians have attributed such complaints to his sarcoidosis. The Board notes that review of VA treatment records supports the opinion. See, e.g., January 2016 VA Treatment Record (noting nausea and vomiting relating to sarcoidosis); September 2007 VA Treatment Record (noting multiple complaints, including abdominal pain, that could be related to sarcoidosis). The Board finds the July 2016 VA medical opinion highly probative, as it is supported by a rationale and based on the evidence of record including STRs, VA and private treatment records, and lay statements. The Board notes that the July 2016 VA opinion provider reported that the Veteran's sarcoidosis had no pulmonary involvement. As the records show a diagnosis of pulmonary sarcoidosis within the claims period, but the July 2016 VA opinion does not provide a nexus, the Board has limited the grant of service connection to nonpulmonary sarcoidosis and addressed pulmonary sarcoidosis in the remand portion of the decision. The Board also notes that there are additional medical opinions on file. The October 2013 VA opinion provider and July 2016 and September 2017 VA contract opinion provider opined that the Veteran's sarcoidosis was less likely than not due to service. However, these opinion providers relied on the diagnosis of sarcoidosis ten years after service and the lack of documented treatment records and failed to provide an adequate rationale for their conclusions. Accordingly, after considering the totality of the evidence, to include the medical and lay evidence, and resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for nonpulmonary sarcoidosis is warranted. ORDER Service connection for nonpulmonary sarcoidosis is granted. REMAND The Veteran seeks service connection for a respiratory disability, to include chronic bronchitis, mild restrictive lung disease, and pulmonary sarcoidosis, asserting such condition is due to service or due to his service-connected nonpulmonary sarcoidosis or unspecified gastritis. See August 2007 Claim; April 2013 Hearing Tr. at 14; Veteran's December 2017 Informal Hearing Presentation. In the July 2017 remand, the Board directed that further medical opinion be obtained to address the Veteran's respiratory disability claim from an examiner other than the physician who rendered the July 2016 VA contract opinion. The RO obtained additional medical opinion in September 2017. However, the opinion was obtained from the physician who rendered the July 2016 VA contract opinion. Moreover, the VA contract opinion provider did not opine as to whether each current respiratory disability was related to service. The VA contract opinion provider did not address the Veteran's pulmonary sarcoidosis diagnosis, even though the February 2009 VA medical center diagnosis was noted in the report. The VA contract opinion provider opined that there was insufficient evidence that the Veteran's reactive airway disease is associated with his in-service bronchitis and that a precise etiology for the disease is not known. However, the opinion failed to address the January 1993 service treatment record noting a questionable diagnosis of reactive airway disease. The Board notes that a July 2016 VA opinion was added to the Veteran's claims file following the last remand. The July 2016 VA opinion provider opined that the Veteran's pulmonary symptomotology during service was more consistent with reactive airway disease and asthma than sarcoidosis. However, the VA opinion provider discussed the Veteran's history of asthma as a child and the role of asthma in upper respiratory infections in the explanation without applying the proper standard that the Veteran is presumed sound upon entrance unless there is clear and unmistakable evidence that the disability preexisted service and was not aggravated by service. The VA opinion provider also opined that it is less likely than not that the Veteran's claimed bronchitis and restrictive lung disease are related to service or indicative of a current respiratory disability. The VA opinion provider explained that there is no current diagnosis of bronchitis or active pulmonary symptomatology. The VA opinion provider noted that the Veteran's pulmonary function test showed restrictive disease consistent with interstitial lung disease, and appears to opine that it is unrelated to the Veteran's symptoms in service, but the opinion is unclear. The VA opinion provider also stated that the Veteran's restrictive lung disease, consistent with interstitial lung disease, could be secondary to his current sarcoidosis, but did not opine as to whether it is at least as likely as not that such disease was caused by or aggravated by his service-connected sarcoidosis. Since the last remand, the Veteran has asserted that his respiratory disability is due to his service-connected unspecified gastritis. See Veteran's December 2017 Informal Hearing Presentation. VA medical opinion has not yet been obtained on this question. In light of the above, remand is appropriate in order to obtain further medical opinion. See Stegall v. West, 11 Vet. App. 268, 271 (1998). While this matter is on remand, the VA should obtain all outstanding, pertinent private and VA treatment records. Accordingly, the case is REMANDED for the following action: 1. After securing any necessary authorization, obtain any private treatment records as the Veteran may identify relevant to his claim. 2. Obtain any additional VA treatment records, including those dated from May 2017 to the present. 3. After conducting the development in paragraphs 1 and 2, return the claims file, to include a copy of this remand, to an examiner other than the physician who rendered the July 2016 VA contract opinion and the September 2017 VA contract opinion, for an addendum opinion addressing the etiology of the Veteran's claimed respiratory disabilities. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. (A) The examiner should identify all diagnoses for respiratory disabilities present since the date of the claim (i.e. since August 2007), 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 that the disability pre-existed service. In this regard, the examiner should specifically consider the January 1989 report of medical history indicating that the Veteran had a pre-existing history of asthma. (C) If there is clear and unmistakable evidence that the respiratory disability pre-existed service, the examiner is asked to opine as to whether there is clear and unmistakable evidence that the pre-existing respiratory disability did not undergo an increase in the underlying pathology during service, i.e., was not aggravated during service. If there was an increase in the severity of the Veteran's disability, the examiner should offer an opinion as to whether such increase was clearly and unmistakably due to the natural progress of the disease. (D) If there is no clear and unmistakable evidence that the current respiratory disability pre-existed service, then the examiner is asked whether it is at least as likely as not that the disorder: (1) had an onset in service; (2) is related to service, to include various complaints and treatments for respiratory symptoms during service, to include those noted in the January 1990, September 1991, and January 1993 service treatment records; (3) is caused by or aggravated by the Veteran's service-connected nonpulmonary sarcoidosis; or (4) is caused by or aggravated by the Veteran's service-connected unspecified gastritis. The examiner should consider all medical and lay evidence of record, to include the July 2016 VA opinion provider's statement that the Veteran's pulmonary function test showed restrictive disease consistent with interstitial lung disease, which could be secondary to his sarcoidosis. A complete rationale should be given for all opinions and conclusions expressed. 4. 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 claim should be readjudicated based on the entirety of the evidence. If the claim remains 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 appellant has the right to submit additional evidence and argument on the matter 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 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 (2012). _________________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs