Citation Nr: 21002585 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 17-13 148 DATE: January 14, 2021 ORDER Service connection for a gastrointestinal disorder is granted. REMANDED The issue of service connection for an acquired psychiatric disorder is remanded. The issue of service connection for sinus cancer is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his gastrointestinal disorder is as likely as not related to service. CONCLUSION OF LAW The criteria for service connection for a gastrointestinal disorder are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Navy from July 1972 to September 1979 with additional reserve service. These matters come before the Board of Veterans’ Appeals (Board) from April 2016 and August 2017 rating decisions. The Veteran testified before the Board at a hearing in October 2019. Most recently, in January 2020, the Board remanded these matters for further evidentiary development. In October 2020, the Veteran filed a VA Form 20-0995, Supplemental Claim Application. He identified the issue for which he was requesting a supplemental claim as service connection for adjustment disorder with anxiety and depressive symptoms. The Veteran did not indicate that he wished to withdraw his legacy appeal. The Board finds that the acquired psychiatric disorder issue remains in appellate status in VA’s legacy system at this time, and the Board has continued appellate review of the matter accordingly. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Gastrointestinal Disorder The Veteran asserts that he has had stomach/gastrointestinal problems since service. The Board concludes that the Veteran has a current disability that is related to service. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Post-service treatment records reflect that the Veteran was evaluated for upper gastrointestinal bleeding with a two-year history of epigastric abdominal pain in December 1983 and a subsequent diagnosis of gastroesophageal reflux disease and Barrett’s esophagus on upper endoscopies. At his October 2019 Board hearing, the Veteran and his wife testified that he had gastrointestinal symptoms in service and that he self-medicated. Pursuant to the January 2020 Board remand, the Veteran underwent a VA examination in March 2020. Following examination, the examiner opined, The condition claimed was less likely than not (less than 50 [percent] probability) incurred in or caused by the claimed in-service injury, event or illness. Rationale: Any and all tabs related to the claim condition in VBMS treatment medical records were reviewed. This examiner was unable to locate medical records for GERD, Barrett’s esophagitis or other “gastrointestinal damage” evaluation or diagnosis during active service in the [V]eteran’s VBMS and JLV treatment medical records. As noted by the Veteran’s representative in the November 2020 Informal Hearing Presentation, the examiner’s opinion relied largely on the absence of documentation in the record and does not take into account the Veteran’s reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). For these reasons, the March 2020 VA examiner’s nexus opinion is inadequate. Rather than remand for another opinion, the Board finds that the Veteran’s and his wife’s statements are credible. In conjunction with the fact that post-service treatment records in December 1983 reflect a two-year history of epigastric abdominal pain, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current gastrointestinal disorder is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a gastrointestinal disorder is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Acquired Psychiatric Disorder Pursuant to the January 2020 Board remand, the Veteran underwent a VA examination in March 2020. The examiner diagnosed other specified trauma- and stress-related disorder under the DSM-V diagnostic criteria. Following examination, the examiner opined the condition claimed was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. As rationale, the examiner stated, Yes, the Veteran [has] a diagnosis of Other Specified Trauma and stressor related disorder, claimed as psychiatric disorder that is at least as likely as not (50 percent or greater probability) incurred in or caused by (the) psychiatric symptoms described by wife and Veteran during service. He watched a heat seeking missile hitting a helicopter, the helicopter going down in flames and killing all 15 people on board. This writer has identified all of his psychiatric symptoms are [consistent] with a [diagnosis] of Other Specified Trauma and stressor related disorder. Despite the finding of the March 2020 VA examiner that the Veteran’s acquired psychiatric disorders are likely to have been caused by the events described by the Veteran, the July 2020 Supplemental Statement of the Case (SSOC) denied the Veteran’s claim for the lack of a corroborated stressor. To this end, the RO has not yet conducted development to corroborate this stressor. Considering that there is a positive opinion related to this, as of yet, uncorroborated stressor, remand is necessary to corroborate this stressor. Sinus Cancer Pursuant to the January 2020 Board remand, the Veteran underwent VA examination in March 2020. Following examination, the examiner opined the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner reasoned, While respiratory cancer of the lung, bronchus, larynx or trachea is considered a presumptive diagnosis associated with Agent Orange exposure based on reviewing of the scientific evidence by the National Academies Committee, the medical literature does not support a connection between Agent Orange exposure (“blue water veteran”) and maxillary squamous cell carcinoma. The [V]eteran also contends that as an aircraft mechanic for 40 years, 7 of which during active service (1972-1979), his exposure to aircraft cleaning chemicals/solvents on board the ship during his Navy which continued for another 33 years working in the same job for DOD before retiring in 2012 caused his maxillary sinus cancer diagnosed in 2011. While a cumulative exposure to various chemicals/solvents working as an aircraft mechanic may be a risk factor to his sinus cancer[,] this [V]eteran had a productive career and worked as an aircraft mechanic for another 32 years before his sinus cancer diagnosis in 2011. Based on available medical evidence the [V]eteran’s history of maxillary sinus cancer, status post left subtotal maxillectomy and adjuvant radiation therapy, without recurrence is less likely than not, less than 50 [percent] probability, is caused by or related to active service including exposure to chemical on board Navy ships and herbicide/agent orange. The Board finds the examiner’s opinion is inadequate. In this regard, the March 2020 VA examiner stated, “While a cumulative exposure to various chemicals/solvents working as an aircraft mechanic may be a risk factor to his sinus cancer[,] this [V]eteran had a productive career and worked as an aircraft mechanic for another 32 years before his sinus cancer diagnosis in 2011.” The use of the word “may” is speculative in nature and the examiner did not explain why having “a productive career working as an aircraft mechanic for another 32 years before his sinus cancer diagnosis” would make it less likely than not that his sinus cancer is related to in-service exposure to chemicals and solvents. Accordingly, an addendum opinion is required on remand as the March 2020 VA examiner’s opinion is speculative regarding whether the Veteran’s sinus cancer is related to chemicals or solvents in service. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Take the appropriate steps to attempt to verify the Veteran’s claimed stressor of watching a heat seeking missile hitting a helicopter, the helicopter going down in flames and killing all 15 people on board. See March 2020 VA mental disorders examination. 3. Obtain an addendum opinion from an appropriate examiner, other than the March 2020 examiner, addressing the etiology of the Veteran’s sinus cancer. The claims file must be made available to the examiner for review. No additional examinations of the Veteran are necessary, unless the examiner determines otherwise. Following a review of the claims file, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s sinus cancer is caused by or related to service, including exposure to chemicals or solvents onboard ships in the Navy. A rationale for all opinions is to be provided. If the examiner cannot provide any of the requested opinions without resorting to speculation, he or she should provide an explanation stating why this is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the (Continued on next page) limits of current medical knowledge in providing an answer to that particular question(s). JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Griffith The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.