Citation Nr: 21005079 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 12-21 553 DATE: January 28, 2021 REMANDED Entitlement to service connection for a stroke is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for enlarged heart is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Amy from March 1980 to June1980 with a subsequent period of service with a Reserve Component. In a February 2018 decision, a Veterans’ Law Judge not the undersigned issued a Board of Veterans’ Appeal (Board) decision that denied the Veteran’s claims of entitlement to service connection for a stroke, hypertension, and an enlarged heart. The Veteran appealed the February 2018 decision to the United States Court of Appeals for Veterans Claims (Court). In a January 2019 order, the Court granted the parties Joint Motion for Remand (JMR), vacating and remanding the February 2018 Board decision. In July 2018, the Board remanded the appeal in order to comply with the JMR’s directions to obtain outstanding Social Security Administration (SSA) and private treatment records. In this regard, the Board finds that no further development is required to satisfy VA’s duty to assist to obtain outstanding SSA medical records as well as any possible outstanding Reserve Component medical records given the post-Remand development and the Veteran’s statements that he did not seek medical treatment at the time of the June 2007 or July 2007 Army physical fitness test which he claims caused his stroke. See 38 U.S.C. § 5103A(b); Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) (the “‘duty to assist’ is not a license for a ‘fishing expedition’ to determine if there might be some unspecified information which could possibly support a claim . . . [and] this duty is limited to specifically identified documents that by their description would be facially relevant and material to the claim”). Entitlement to service connection for a stroke is remanded. As to the claim of service connection for a stroke, the Board finds that another Remand is required because the December 2016 VA examiner’s opinion is not adequate. The Board has reached this conclusion because, while the Veteran’s claims that his stroke occurred while taking an Army physical fitness test in June 2007 or July 2007 and the record confirms the appellant had periods of inactive duty for training (INACDUTRA) on June 9, 2007, June 10, 2007, July 7, 2007, August 4, 2007, and August 5, 2007 (see March 2017 LES statements; September 2009 Reserve component physical evaluation), the December 2016 VA examiner reported that the only records he had were from the 1980’s. See Madden v. Gober, 125 F.3d. 1477 1481 (Fed. Cir. 1997) (holing that the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). In other words, the Board does not find the VA opinion adequate because the examiner appears to have provided the etiology opinion without knowing that the record confirmed the Veteran’s claim that he had qualifying Reserve Component service on or about the date that he claimed that he had the stroke. See 38 U.S.C. §§ 101(24), 106, 1110, 1131 (service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing active duty for training (ACDUTRA) or from injury incurred or aggravated while performing INACDUTRA). The Board also does not find the December 2016 VA opinion adequate because in accordance with Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009) the examiner did not consider and discuss the competent and credible lay claims found in the record from the Veteran’s ex-wife and friend (see January 2010 letter from Ronnie T. Brown and July 2012 letter from Gena D. McCoy (ex-wife)) regarding the appellant having an observable symptom of a stroke (i.e., facial drooping) and his ex-wife’s claim that the Veteran returned from his drill weekend in June 2007 with a cut on his face which he claimed was caused by shaving when his face was numb. Therefore, the Board finds that another Remand is required to obtain an adequate etiology opinion as to the relationship, if any, between the stroke that that was first diagnosed in October 2007 (see October 2007 letter from Parkwest Health Center) and the Veteran’s military service to include his documented periods of INACDUTRA on June 9, 2007, June 10, 2007, July 7, 2007, August 4, 2007, and August 5, 2007. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). While the appeal is in Remand status any outstanding VA and/or private treatment records should also be obtained and associated with the record to include the December 1, 2016, to April 14, 2017, treatment records from Birmingham VA Medical Center the RO reported were electronically reviewed on November 4, 2020. See 38 U.S.C. § 5103A(b). Entitlement to service connection for hypertension and an enlarged heart are remanded. As to the Veteran’s claim of service connection for hypertension and an enlarged heart, the Board finds that these issues must be remanded because they appellant claims they are due to his stroke and therefore the Board finds that their adjudication is inextricably intertwined with the above claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). The appeal is REMANDED for the following actions: 1. Associate with the record any outstanding VA treatment records including the December 1, 2016, to April 14, 2017, treatment records from Birmingham VA Medical Center the RO reported were electronically reviewed on November 4, 2020. 2. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records. If possible, the Veteran’s representative should submit any new pertinent evidence that the Board does not have. This would greatly help the Board and help expedite the case. 3. Obtain a new medical opinion as to the origins of the Veteran’s stroke. The claims folder should be made available to and reviewed by the examiner. Following consideration of the evidence of record (both lay and medical) and the results of the examination, the examiner is asked to address the following: Provide an opinion as to whether it is at least as likely as not that the Veteran’s stroke which was first diagnosed in October 2007 had its onset directly during the Veteran’s service or is otherwise related to any event or injury during his service to include: i. a disease or injury while on any period of active duty and ACDUTRA and/or ii. an injury while on any period of INACDUTRA to include on June 9, 2007, June 10, 2007, July 7, 2007, August 4, 2007, and August 5, 2007. In providing an answer to the above question the examiner should consider and discuss the service and Reserve Component treatment records. In order to comply with the JMR, the examiner in providing the above opinions must consider and discuss, among other things, the Veteran’s, his ex-wife, and his friend’s competent lay claims regarding observable symptomatology in and/or since service to include the appellant’s claims regarding having observable symptom of a stroke (i.e., facial drooping and numbness), the January 2010 and July 2012 letters regarding the appellant having an observable symptom of a stroke (i.e., facial drooping). and his ex-wife’s claim that the appellant returned from his drill weekend in June 2007 with a cut on his face which he claimed was caused by shaving when his face was numb. In providing an answer to the above question the examiner the examiner cannot rely solely on negative medical evidence like the Reserve Component records for 2007 being negative for complaints, diagnoses, or treatment for a stroke. In providing answers to the above question the examiner is also advised that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. In answering the question please articulate the reasoning underpinning your conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. If the examiner cannot respond to an inquiry without resort to speculation as to any of the above claims he or she should so state, and must further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.T. Werner, Counsel 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.