Citation Nr: 21064079 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 15-39 211 DATE: October 19, 2021 REMANDED Entitlement to service connection for gastroesophageal reflux disorder (GERD) is remanded. Entitlement to service connection for a skin disability, to include pseudofolliculitis barbae, is remanded. Entitlement to service connection for hepatitis C is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 1973 to July 1975 and from July 1977 to August 1979; however, in an April 2013 administrative decision, the Agency of Original Jurisdiction (AOJ) determined that his discharge from his second period of service was a bar to VA benefits based on incidents which occurred therein. He also had more than two years of service of an unknown nature in the United States Army Reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which readjudicated the Veteran's claims based on VA's receipt of pertinent new and material evidence within the appeal period of a May 2013 rating decision. 38 C.F.R. § 3.156(b) (2018); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). The Veteran expressed disagreement with these determinations as they relate to the issues on appeal, and the present appeal ensued. During the pendency of the appeal, jurisdiction was transferred to the RO in Los Angeles, California, from where it was certified to, and received by, the Board. The Veteran provided oral testimony in support of his appeal at a July 2015 informal Decision Review Officer (DRO) conference and at a November 2018 Board hearing that was conducted by the undersigned Veterans Law Judge (VLJ) via videoconferencing equipment. Transcripts of both hearings are associated with the file. The Veteran's appealed issues, and one other, were previously before the Board in June 2019, when it was determined that remand was necessary to ensure that VA fulfilled its duty to assist the Veteran in substantiating his appeal. The Board's prior remand directives and the subsequent actions of the AOJ will be discussed below. The Board's June 2019 remand also included an issue seeking to establish service connection for the Veteran's tinnitus. In a July 2021 DRO decision, the AOJ granted service connection for this disability and assigned an initial 10 percent evaluation, effective from October 18, 2012. Although the appeal period remains pending with regard to this determination, the Veteran has not expressed disagreement with the assigned initial evaluation or effective date of this award, and thus, the issue is no longer in appellate status. Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). 1. Entitlement to service connection for GERD is remanded. 2. Entitlement to service connection for a skin disability, to include pseudofolliculitis barbae, is remanded. The Board's June 2019 remand directed the AOJ to (1) seek and obtain outstanding identified VA and private treatment records, (2) take steps to verify the nature of the Veteran's service in the Army Reserve from July 1975 to July 1977, to include obtaining his pay stubs from the Defense Finance and Accounting Service (DFAS) for this period, and (3) obtain medical opinions concerning the nature, date(s) of initial onset and, and etiology of the Veteran's claimed disabilities. To ensure that the opining VA clinician would have the benefit of review and confirmation of the Veteran's complete medical history and service career, these remand directives were to be completed in the order set forth above. In response, the AOJ obtained updated VA treatment records and made unfruitful attempts to secure identified private treatment records, as the latter had been destroyed by the private physician's office after 10 years. The AOJ then requested the Veteran's Army Reserve pay stubs from DFAS in letters dated in November 2019 and December 2019; however, no response was received. The AOJ requested this evidence from DFAS through Personnel Information Exchange System (PIES) in December 2019, but again, no response was received. An AOJ employee contacted DFAS via email to request this information in July 2020 and January 2021, and the response indicated that such requests must be made through a the DFAS website. The AOJ complied with this guidance, and online requests for this evidence were made in January 2021 and February 2021. The Veteran's file includes a May 2021 screenshot from the DFAS website reflecting that the requested information was provided as an electronic attachment. Concurrent with this upload are electronic copies of the Veteran's pay stubs from June 1976 to August 1979. The Board observes that the first few pay stubs, dated from June 1976 to October 1976 reflect the verbiage "JUN/76 IS FIRST RECORD MONTH ON COMPUTER." While the Board acknowledges and appreciates the AOJ's efforts to obtain this evidence, the Board's remand directive remains unfulfilled, as the nature of the Veteran's Army Reserve service is unverified from July 1975 to May 1976, representing half of the period covered in the initial request. Moreover, to the extent that the Veteran's pay stubs dated prior to June 1976 may not be digitized, there is no indication that this evidence is not extant or otherwise unavailable for review. As such, additional development to confirm the nature of the Veteran's Army Reserve service is necessary. Further, the July 2020 VA examiner opined that the Veteran's pseudofolliculitis barbae and GERD were less likely as not proximately due to or the result of any incident of the Veteran's service; however, the stated rationale provides that these opinions were based on a lack of objective medical evidence showing diagnoses of these disabilities or congruent symptoms in the Veteran's service treatment records. Unfortunately, this rationale is contrary to the United States Court of Appeals for Veterans Claims' (the Court's) holding in Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). This is particularly problematic in the present case, as the Veteran has previously testified before a DRO and the undersigned that he experienced such symptoms during and since his first period of active duty and service in the Army Reserve. Accordingly, the Board concludes that the July 2020 VA opinions are inadequate for the purpose of readjudicating the Veteran's appealed issues, and thus, another remand is necessary. 3. Entitlement to service connection for hepatitis C is remanded. The record reflects that hepatitis C was diagnosed in the early 1990s, and the Veteran contends that, despite his history of intravenous drug use, this disability is due to inoculations administered via an air gun during his first period of service. In the Board's prior remand, it was noted that the Veteran's asserted theory of entitlement has been recognized as "plausible" by a former VA Secretary in VBA Fast Letter 04-13 (June 29, 2004), and thus, a medical nexus opinion addressing the etiology of this disability was sought. After a review of the file and interview with the Veteran, the July 2020 VA examiner opined that this disability was less likely as not due to any incident of the Veteran's service; rather, such was more likely as not due to his history of intravenous drug use. As rationale, the VA examiner stated that the Veteran's service treatment records did not includes a diagnosis of hepatitis C or congruent symptoms and cited medical treatises which provide that intravenous drug users have a 60 percent chance of contracting hepatitis C. While acknowledging VBA Fast Letter 04-13 (June 29, 2004), the examiner stated that there has never been a documented case of hepatitis C contracted via air gun inoculations; however, the VA website cited for this premise is no longer valid or in use. While the Board appreciates the July 2020 VA examiner's opinions, the stated rationale is not adequate under the governing laws and does support the conclusions reached. As such, another remand is necessary. The matters are REMANDED for the following actions: 1. The AOJ must associate with the file all updated records of VA and private treatment, with the Veteran's assistance regarding the latter. 2. Thereafter, the AOJ must contact DFAS and request copies (electronic, physical, or otherwise) of the Veteran's pay stubs from the Army Reserve for the period from July 1975 to May 1976. All actions in furtherance of this directive, to include all responses from DFAS, must be commemorated in the file. 3. If DFAS cannot provide the Veteran's pay stubs for his service in the Army Reserve from July 1975 to May 1976, the AOJ must contact the Department of the Army, the Department of Defense, DFAS, and any other appropriate office to request evidence verifying the nature of his service in the Army Reserve from July 1975 to May 1976, to include the Veteran's Master Military Pay Account (MMPA) for this period. 4. After the nature of the totality of the Veteran's service in the Army Reserve is verified, the AOJ must request that the Veteran be scheduled for an appropriate VA examination to determine the etiology of his GERD, pseudofolliculitis, and hepatitis C. After a review of the file and examination of the Veteran, the VA clinician is requested to address the following: a. Provide an opinion concerning whether the Veteran's GERD is at least as likely as not proximately due to or the result of any incident of his first period of active duty or his subsequent service in the Army Reserve. b. Provide an opinion concerning whether the Veteran's pseudofolliculitis barbae is at least as likely as not proximately due to or the result of any incident of his first period of active duty or his subsequent service in the Army Reserve. *In addressing the above, the examiner must note that the Veteran has competently reported experiencing symptoms congruent with these disabilities during his first period of active duty, and this evidence may not be devalued based on a lack of objective medical evidence within the Veteran's service treatment records bolstering such. c. Provide an opinion concerning whether the Veteran's hepatitis C is at least as likely as not proximately due to or the result of any incident of his first period of active duty or his subsequent service in the Army Reserve, to include in-service air gun inoculations. *In addressing the above, the examiner is reminded that the VA Secretary has recognized air gun inoculations as a biologically plausible transmitter of hepatitis C. VBA Fast Letter 04-13 (June 29, 2004). Further, the Veteran's past participation in other "high-risk" activities does not preclude the possibility that this disability may be due to an incident of the Veteran's service. If the examiner cannot provide the requested opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall 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 limits of current medical knowledge in providing an answer to the particular question. 5. Thereafter, the AOJ must readjudicate the Veteran's appealed issues in light of the totality of evidence of record. If any benefit sought is not granted to the fullest extent, the AOJ must provide the Veteran and his representative with a copy of the readjudication and afford them an appropriate period to respond. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Scott W. Dale, 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.