Citation Nr: 21071950 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 15-11 975 DATE: December 1, 2021 REMANDED Entitlement to service connection for mitochondrial disease and muscle weakness, to include as due to exposure to herbicide agents (Agent Orange) and as secondary to service-connected disability, is remanded. Entitlement to service connection for abdominal aortic aneurysm (AAA), to include as due to exposure to herbicide agents and as secondary to service-connected disability, is remanded. Entitlement to service connection for arachnoiditis, enhanced brain meninges, and Horner's Syndrome, to include as due to exposure to herbicide agents and as secondary to service-connected disability, is remanded. Entitlement to service connection for cognitive maladies, to include as due to exposure to herbicide agents and as secondary to service-connected disability, is remanded. Entitlement to service connection for vertigo, to include as due to exposure to herbicide agents and as secondary to service-connected disability, is remanded. Entitlement to service connection for a chronic headache disability, to include as due to exposure to herbicide agents and as secondary to service-connected disability, is remanded. Entitlement to service connection for chronic fatigue, to include as due to exposure to herbicide agents and as secondary to service-connected disability, is remanded. Entitlement to service connection for gastrointestinal (GI) problems, to include gastroesophageal reflux disease (GERD), including as due to exposure to herbicide agents and as secondary to service-connected disability, is remanded. Entitlement to service connection for tinnitus, to include as due to exposure to herbicide agents and as secondary to service-connected disability, is remanded. REASONS FOR REMAND The late Veteran served on active duty from February 1966 to February 1968, including service in the Republic of Vietnam from March 1967 to January 1968. He died in September 2013. His surviving spouse has been substituted as the appellant in this appeal. The current appeal before the Board of Veterans' Appeals (Board) arose from March and July 2008 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2018, the appellant testified at a hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. In September 2018 and June 2021, the Board remanded the current claims on appeal to the Agency of Original Jurisdiction (AOJ) for further evidentiary development. All Disabilities The Board sincerely laments the need to remand this appeal yet again. However, the Board finds that an additional remand is warranted to ensure that the appellant is allowed every possible consideration in this appeal, especially in light of the complex medical issues involved in the claims on appeal. In the prior remands, the Board sought specific clarification, through VA opinions, as to whether each claimed disability on appeal consisted of a separate disability, a disability associated with another disability, or only a symptom attributable to a disability. The opinions obtained thus far largely have not provided the requested clarification. A series of medical opinions obtained from a VA-contracted examiner in July 2021 indicated that many of the Veteran's symptoms had been related to his mitochondrial disorder, including fatigue, headaches, cognitive maladies, and gastrointestinal symptoms, but did not specifically clarify whether the symptoms/conditions constituted separate disabilities or merely symptoms associated with the mitochondrial disorder. The examiner specifically indicated that the Veteran did not have a chronic fatigue syndrome (CFS) diagnosis. An August 2021 report obtained from a VA-contracted examiner also provided multiple etiology opinions. Although that examiner concluded that the Veteran had not had a confirmed mitochondrial disease diagnosis, the examiner did indicate that the Veteran had a distinct chronic fatigue disability. Additionally, in the June 2021 remand, the Board directed that new opinions obtained should address medical literature provided by the appellant and all lay assertions of record as to the nature, onset, and continuity of the late Veteran's symptoms. As discussed further below, the opinions provided did not adequately address the lay assertions of record or the medical literature provided by the appellant and were otherwise, deficient or contradictory. Service connection for mitochondrial disease In addition to noted contradictions in the recent medical opinion with respect to the Veteran's diagnosis of mitochondrial disease, the July 2021 VA-contracted examiner concluded that the Veteran's mitochondrial metabolism disorder was an inherited disorder. The examiner did not provide specific reasons for this statement but rather simply noted that the Veteran's son developed the condition. Notably, the examiner also indicated that mitochondrial disorders could result from random mutations and was entirely unrelated to his active duty or Agent Orange exposure, as there was no medical literature showing a relationship. The examiner concluded that the mitochondrial disease was completely unrelated to any service-connected condition and that no aggravation of the disorder was plausible but did not provide clear reasons for these opinions. In the June 2021 remand, the Board specifically instructed that the examiner consider and discuss medical literature previously provided by the appellant as to a potential connection between mitochondrial disease and herbicide exposure, and the impact of stressors on energy balancein favor of the assertion that the Veteran's mitochondrial disease was aggravated by service-connected coronary artery disease (CAD). In this regard, the appellant specifically contended that the Veteran's CAD affected his oxygen and blood flow, which in turn affected his mitochondria. The July 2021 VA-contracted examiner did not address any of the medical literature or lay assertions provided by the late Veteran or the appellant. A remand by the Board confers on a claimant a legal right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, remand is required to obtain a new VA opinion as to the etiology of the mitochondrial disorder based on consideration of all the evidence of record. To the extent that the August 2021 VA-contracted examiner concluded that the Veteran did not have a confirmed mitochondrial disorder diagnosis, the Board notes that extensive evidence of record weighs in favor of finding that the late Veteran indeed had a mitochondrial disorder diagnosis during his lifetime, and during the relevant appeal period. Most notably, after several medical consultations where a mitochondrial disorder was suspected, a July 2008 private treatment report concluded that the Veteran had a mitochondrial disease with a GI impact. Multiple additional reports concur with or confirm the mitochondrial disorder diagnosis up through an October 2012 treatment report from the Veteran's private oncologist which also noted the mitochondrial disorder diagnosis. Thus, the August 2021 VA-contracted examiner's findings with respect to the diagnosis of a mitochondrial disorder are of no probative value. Service connection for AAA Similarly, with respect to the claimed AAA, the late Veteran and the appellant have asserted that AAA is prevalent among CAD patientsin support of a correlation between the two disabilities. The appellant specifically contended that the Veteran's CAD affected his oxygen and blood flow, which in turn also complicated his AAA surgery. In the July 2021 and August 2021 reports, the examiners each provided the opinion that the Veteran's AAA was not caused or aggravated by his CAD, but neither examiner addressed the contentions of record concerning the Veteran's lack of oxygen and blood flow which was believed to have complicated his AAA surgery. Additionally, neither examiner provided an opinion as to whether AAA was at least as likely as not caused or aggravated by the claimed mitochondrial disorder, in spite of the June 2021 Board remand directives. See id. Service connection for arachnoiditis, enhanced brain meninges, and Horner's syndrome With respect to the claimed arachnoiditis, in opinions provided by a VA-contracted examiner in July 2021, the examiner opined that disability was less likely than not incurred in, or caused by, a claimed in-service injury, event, or illness; that it was less likely than not that the disability was proximately due to, or the result of, a service-connected condition; and that the claimed disability was not aggravated by a service-connected condition. In providing these opinions, however, the examiner indicated that the Veteran did not have a diagnosed peripheral nerve condition, but then noted that arachnoiditis was not a peripheral nerve condition. No further explanation was provided. In the August 2021 opinion report, the examiner concluded that the Veteran's arachnoiditis was caused by dye from a myelogram after service and that it had no relationship to his CAD. The examiner further opined that the Horner's syndrome was not incurred in service or related to herbicide exposure and had no relationship to CAD. The examiner, however, did not consider the lay assertions of record in which the Veteran contended that extensive treatment for his myocardial infarction exacerbated his muscle weakness and cramping, and these assertions still have not otherwise been addressed by a VA examiner. Further, there is no opinion of record as to whether either disability was caused or aggravated by the claimed mitochondrial disorder. See id. Service connection for cognitive maladies In the August 2019 opinions, the examiner indicated that the Veteran did not have cognitive malady substantiated by the record. Meanwhile, in the August 2021 examination report, the examiner indicate that the Veteran's cognitive maladies included memory lapses which were not related to service. However, the examiner did not provided reasons for this opinion. Rather, the examiner merely concluded that the memory impairment was related to obstructive sleep apnea and arachnoiditis. As alluded to previously, however, the examiner did not specifically indicate whether the Veteran's cognitive impairment manifestations consisted of a distinct disability or merely a symptom of the arachnoiditis. Further, an opinion has not been obtained with respect to whether the manifested cognitive maladies were caused or aggravated by the claimed mitochondrial disorder, as directed in the June 2021 Board remand. See id. Service connection for vertigo, chronic headaches, chronic fatigue, GI problems, and tinnitus With respect to the claimed vertigo and GI problems, in the July 2021 opinions, the examiner indicated that treatment records attributed the Veteran's vertigo to his mitochondrial disorder, and that GI symptoms were commonly associated with mitochondrial disorders, but she did not provide clear opinions on these matters with supporting rationale. See 38 C.F.R. § 4.2. Similarly, as for the claimed chronic headaches, the July 2021 report indicated that headaches are a symptom of mitochondrial metabolism disorder, and the August 2021 report indicated that headaches and tinnitus were related to arachnoiditis. Also, in addition to the noted confusion with respect to whether the Veteran had stand-alone chronic fatigue, in the August 2021 report, the examiner indicated that chronic fatigue was related to the Veteran's arachnoiditis, mold exposure and sleep apnea, but there is no clear etiology opinion on this matter. See id. Further, while the examiners variously opined that each of these disabilities were not at least as likely as not etiologically related to the Veteran's service or his service-connected CAD, the opinions have largely been conclusory in nature, without adequate rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (a medical examination report must contain clear conclusions with supporting data and a reasoned medical explanation connecting the two). With respect to the Veteran's tinnitus, specifically, in June 2021 opinions, a VA-contracted examiner opined that the tinnitus was less likely than not incurred in, or caused by, a claimed in-service injury, event, or illness. The opinion, however, is based on the inaccurate factual premise that the Veteran's first complaint of tinnitus was in 2011. Review of the medical evidence indicates that the Veteran had complained of intermittent tinnitus since at least May 2007. Thus, the examiner's opinion is of no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (an opinion based on an inaccurate factual premise has no probative value). Additionally, in the June 2021 reports, the examiner indicated that the Veteran was seen for an audiological evaluation on December 28, 2012. However, this treatment report does not appear to be currently associated with the claims file. On remand, the AOJ should ensure that this audiological evaluation report is associated with the claims file. 38 C.F.R. § 3.159. Accordingly, these matters are hereby REMANDED for the following action: 1. Determine whether the Veteran's audiological evaluation performed on December 28, 2012, was conducted at a VA facility, and if so, obtain the report. If the evaluation was not conducted at a VA facility, ask the appellant to provide VA with appropriate authorization to obtain the report. Following the procedures set forth in 38 C.F.R. § 3.159 when requesting the report. All records and/or responses received should be associated with the claims file. 2. Then, arrange for the claims file to be reviewed by an appropriate VA examiner, preferably one with experience in evaluating mitochondrial disorders, to obtain new opinions as to the etiology of the claimed mitochondrial disorder and gastrointestinal problems. The claims file and a copy of this REMAND should be made available to the examiner for review. After complete review of the record, to include the medical evidence and lay assertions, the VA examiner should: (a.) clarify the nature/presence of each GI disability, indicating whether each constitutes a separate disability, a disability associated with another disability, or only a symptom attributable to a disability. The examiner must provide clear reasons for each determination made in this regardand should accept that the Veteran had a diagnosed mitochondrial disorder. (b.) Then, for each disability reasonably present from the time that the late Veteran filed his service connection claims in December 2006 through the time of his death in September 2013, provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability), that such had its onset during the Veteran's service, or is otherwise medically-related to his service, to include as a result of his presumed exposure to herbicide agents during his Vietnam service. (c.) For each disability reasonably present that is deemed to not be at least as likely as not etiologically related to the Veteran's service on a direct basis, provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the disability was caused, or aggravated (made worse) beyond its natural progression by the Veteran's service-connected coronary artery disease, to include, all manifestations of, and treatments rendered for, the disease. In this regard, the examiner must address the lay contentions that the extensive treatment for the Veteran's myocardial infarction exacerbated his muscle weakness and cramping, and that his CAD affected his oxygen and blood flow, which in turn affected his mitochondria. (d.) Also, for each GI disability reasonably present, provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the condition/disability was caused, or aggravated (made worse) beyond its natural progression by the claimed mitochondrial disease, to include all manifestations of, and treatments rendered for, the disease. In addressing the above, the examiner must consider and discuss all lay evidence of record, to include the late Veteran's and the appellant's lay reports as to the nature, onset, and continuity of symptomatology of the claimed disabilities, and the medical literature provided by the appellant concerning: (1) a potential connection between mitochondrial disease and herbicide exposure; and (2) the impact of stressors on energy balancein favor of the assertion that the mitochondrial disease was aggravated by service-connected CAD. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. The examiner must provide adequate reasons for all opinions. The Board in particular notes that a discussion of the facts and medical principles involved with respect to each claimed disability would be of considerable assistance to the Board. Additionally, a copy of, or at least a citation to, any medical article cited in support of an opinion should also be provided. 3. Also, arrange for the claims file to be reviewed by an appropriate VA examiner to obtain new opinions as to the etiology of the claimed arachnoiditis, enhanced brain meninges, & Horner's syndrome. The claims file and a copy of this REMAND should be made available to the examiner for review. After complete review of the record, to include the medical evidence and lay assertions, the VA examiner should: (a.) clarify the nature/presence of each claimed disability, indicating whether each constitutes a separate disability, a disability associated with another disability, or only a symptom attributable to a disability. The examiner must provide clear reasons for each determination made in this regard. (b.) Then, for each disability reasonably present from the time the late Veteran filed his service connection claims in December 2006 through the time of his death in September 2013, provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability), that such had its onset during the Veteran's service, or is otherwise medically-related to his service, to include as a result of his presumed exposure to herbicide agents during his Vietnam service. (c.) For each disability reasonably present that is deemed to not be at least as likely as not etiologically related to the Veteran's service on a direct basis, provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the condition/disability was caused, or aggravated (made worse) beyond its natural progression by the Veteran's service-connected coronary artery disease, to include, all manifestations of, and treatments rendered for, the disease. In this regard, the examiner must address the lay contention that the extensive treatment for the Veteran's myocardial infarction exacerbated his muscle weakness and cramping, and that his CAD affected his oxygen and blood flow. (d.) Also, for each disability reasonably present, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the condition/disability was caused, or aggravated (made worse) beyond its natural progression by the claimed mitochondrial disease, to include all manifestations of, and treatments rendered, for the disease. In addressing the above, the examiner must consider and discuss all pertinent medical evidence, to include evidence of treatment and diagnoses of the claimed disabilities/conditions, and early evidence from Massachusetts General Hospital noting ongoing neurological problems since the 1970s. The examiner must also consider and discuss all lay evidence of record, to include the late Veteran's and the appellant's reports as to the nature, onset, and continuity of symptomatology of the claimed disabilities on appeal. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. The examiner must provide adequate reasons for all opinions. The Board in particular notes that a discussion of the facts and medical principles involved with respect to each claimed disability would be of considerable assistance to the Board. Additionally, a copy of, or at least a citation to, any medical article cited in support of an opinion should also be provided. 4. Also, arrange for the claims file to be reviewed by an appropriate VA examiner to obtain new opinions as to the etiology of the claimed AAA. The claims file and a copy of this REMAND should be made available to the examiner for review. After complete review of the record, to include the medical evidence and lay assertions, the VA examiner should: (a.) provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability), that the Veteran's AAA had its onset during the Veteran's service, or is otherwise medically-related to his service, to include as a result of his presumed exposure to herbicide agents during his Vietnam service. (b.) If the AAA is deemed to not be at least as likely as not etiologically related to the Veteran's service on a direct basis, provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the condition/disability was caused, or aggravated (made worse) beyond its natural progression by the Veteran's service-connected coronary artery disease, to include, all manifestations of, and treatments rendered for the disease. In this regard, the examiner must address the lay contentions that the extensive treatment for the Veteran's myocardial infarction exacerbated his muscle weakness and cramping, and that his CAD affected his oxygen and blood flow, which, in turn, complicated his AAA surgery. (c.) Also, provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the AAA was caused, or aggravated (made worse) beyond its natural progression by the claimed mitochondrial disease, to include all manifestations of, and treatments rendered for, the disease. In addressing the above, the examiner must consider and discuss all pertinent medical evidence, to include evidence of treatment and diagnoses of the claimed disabilities/conditions, and all lay evidence of record, to include the late Veteran's and the appellant's reports as to the nature, onset, and continuity of symptomatology of the diagnosed AAA, including assertions that AAA is prevalent among CAD patientsin support of a correlation between the two disabilities. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. The examiner must provide adequate reasons for all opinions. The Board in particular notes that a discussion of the facts and medical principles involved with respect to each claimed disability would be of considerable assistance to the Board. Additionally, a copy of, or at least a citation to, any medical article cited in support of an opinion should also be provided. 5. Also, arrange for the claims file to be reviewed by (an) appropriate VA examiner(s) (preferably an examiner with experience in neurology, for the claimed headaches and cognitive maladies), to obtain new opinions as to the etiology of the claimed headaches, cognitive maladies, vertigo and chronic fatigue. The claims file and a copy of this REMAND should be made available to the examiner for review. After complete review of the record, to include the medical evidence and lay assertions, the respective VA examiner(s) should: (a.) clarify the nature/presence of each claimed disability (to include diagnosed migraine headaches), indicating whether each constitutes a separate disability, a disability associated with another disability, or only a symptom attributable to a disability. The examiner must provide clear reasons for each determination made in this regard. (b.) Then, for each disability reasonably present from the time the late Veteran filed his service connection claims in December 2006 through the time of his death in September 2013, provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability), that such had its onset during the Veteran's service, or is otherwise medically-related to his service, to include as a result of his presumed exposure to herbicide agents during his Vietnam service. (c.) For each disability reasonably present that is deemed to not be at least as likely as not etiologically related to the Veteran's service on a direct basis, provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the condition/disability was caused, or aggravated (made worse) beyond its natural progression by the Veteran's service-connected coronary artery disease, to include, all manifestations of, and treatments rendered for, the disease. In this regard, the examiner must address the lay contention that the extensive treatment for the Veteran's myocardial infarction exacerbated his muscle weakness and cramping, and that the Veteran's CAD affected his oxygen and blood flow. (d.) Also, for each disability reasonably present, provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the condition/disability was caused, or aggravated (made worse) beyond its natural progression by the claimed mitochondrial disease and/or the claimed arachnoiditis, to include all manifestations of, and treatments rendered for, either disability. In addressing the above, the examiner must consider and discuss all pertinent medical evidence, to include evidence of treatment and diagnoses of the claimed disabilities/conditions, and early evidence from Massachusetts General Hospital noting ongoing neurological problems since the 1970s. The examiner must also consider and discuss all lay evidence of record, to include the late Veteran's and the appellant's reports as to the nature, onset, and continuity of symptomatology of the claimed disabilities on appeal. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. The examiner must provide adequate reasons for all opinions. The Board in particular notes that a discussion of the facts and medical principles involved with respect to each claimed disability would be of considerable assistance to the Board. Additionally, a copy of, or at least a citation to, any medical article cited in support of an opinion should also be provided. 6. Also, arrange for the claims file to be reviewed by an appropriate VA examiner to obtain new opinions as to the etiology of the claimed tinnitus, preferably one with experience in otolaryngology or audiology. The claims file and a copy of this REMAND should be made available to the examiner for review. After complete review of the record, to include the medical evidence and lay assertions, the VA examiner should: (a.) provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability), that the Veteran's tinnitus had its onset during his service, or is otherwise medically-related to his service, to include as a result of his conceded exposure to hazardous noise during service, including during his Vietnam service. (b.) If tinnitus is deemed to not be at least as likely as not etiologically related to the Veteran's service on a direct basis, provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the condition/disability was caused, or aggravated (made worse) beyond its natural progression by the Veteran's service-connected coronary artery disease, to include, all manifestations of, and treatments rendered for, the disease. In this regard, the examiner must address the lay contention that the extensive treatment for the Veteran's myocardial infarction exacerbated his muscle weakness and cramping, and that the Veteran's CAD affected his oxygen and blood flow. (c.) Also, provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the tinnitus was caused, or aggravated (made worse) beyond its natural progression by the claimed mitochondrial disease and/or the claimed arachnoiditis, and/or the claimed vertigo/labyrinthitis, to include all manifestations of, and treatments rendered for, either disability. In addressing the above, the examiner must consider and discuss all pertinent medical evidence, to include evidence of treatment and diagnoses of the claimed disabilities/conditions, and all lay evidence of record, to include the late Veteran's and the appellant's reports as to the nature, onset, and continuity of tinnitus symptomatology. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. The examiner must provide adequate reasons for all opinions. The Board in particular notes that a discussion of the facts and medical principles involved with respect to each claimed disability would be of considerable assistance to the Board. Additionally, a copy of, or at least a citation to, any medical article cited in support of an opinion should also be provided. 7. To help avoid future remand, ensure that the requested actions have been accomplished, to the extent possible, in compliance with this REMAND. No action is required of the appellant until she is notified by VA. However, she is advised of her obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). The appellant also is advised that she has the right to submit additional evidence and argument with respect to these matters. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Wilson, 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.